COURT PROCEEDINGS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75-00770R000100100001-2
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 289
• Document Creation Date: December 16, 2016
• Document Release Date: January 7, 2005
• Sequence Number: 1
• Publication Date: May 31, 1966
• Content Type: COURTFILE

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UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF MARYLAND
BALTIMORE, MARYLAND 21202
ROSZEL C. THOMSEN
CHIEF JUDGE
May 31, 1.966
Thomas J. Renney, Esq.
United States Attorney
409 Post Office Building
Baltimore, Maryland 21202
Laurence R. Houston, Esq., General Counsel
Central Intelligence Agency
ashington, D.C. 20505
JZ:nest C. Laskaushas, Esq.
310 17th Street, N.W.
-oshington 6, D.C.
L=.Zert J. Stanford, Esq.
1730 M Street, N.W.
Idhington, D.C. 20036
:A. R. Connolly, Esq.
jan & Dartson
Z15 Connecticut Avenue
%hington, D.C. 20006
15952
centlement
Mr. Renney has delivered to me his letter of :!ay
1966, in the above matter, together with the affidavit of
Houston and the two page attachment thereto. I have put t.
letter in my safe. Mx. Renney tells me that he also has a
copy of the affidavit and attachments in his safe, so they
.3y- be examined by counsel for the plaintiff and counsel
o defendant either at the office of the General Counsel 0.
C.I.A. or in the office of the United States Attorney LI
Laltimere upon arrangements made with Mx. Benney. Since I
will be away after this week, I suggest that any examination
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IP!
inemas J. Zenney, Esq.
Laurence R. Bouton, Esq,
Ernest C. Paskauslias, Esq.
Robert J. Stanford, Esq.
Paul R. Connolly, Esq.
1,'Iay 31, 1966
Page s2
in Baltimore be made in the office of Mx. Renney as my safe
will be closed and locked.
I further direct that any reference to the matter
covered by the affidavit and attachment in the briefs of
either the plaintiff or the defendant be written up as
separate pages and two copies of those pages be sent to me,
under separate cover, so that they may be kept under seal
until the hearing in the case. The rest of the briefs, of
course, dhould be filed in the usual way, one copy to the
Clerk and one copy to the Judge.
/CT :LEL
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May 31, 1966
Ernest C. Raskauskas, Esq.
1418 Ray Road
Hyattsville, Maryland
Paul R. Connolly, Esq.
5411 Albemarle street, N. W.
Westmoreland Hills
Washington, D. C. 20016
dawrence R. Houston, Esq.
General Counsel
Central Intelligence Agency
Washington, D. C. 20505
Re: Eerik Heine v. Juni Raus
Civil Action No. 15952
Gentlemen:
Enclosed you will find a copy of a self-explanatory
letter delivered to Chief Judge Thomsen today.
ene
Sincerely your
Tho4s J. Kenney
tr, States Attorney
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May 31, 1966
iionorable lLosze& G. Thomsen
Chief Judge
United Autos District Court
United Autos Courthouse
Daltimore, Marylann
Dear cludbe Thomsen:
At the bearing on May 13, 1906 in the case ni
LA,1rl helm, v. dart arms, Civil Action No. 15952,
the Court requested that Yfr. hmrenee Houston, General
i;ounsel of the Central Intelligence Agency, submit a
statement as to the legal authority of the C.I.A. to
engaLe in activities uithin the United Antes with
respect to foreign intelligence sources.
In resionse to that request, la% Euston has
prepared an affidavit which incorporates by reference
two ;icrtinent paragratihs of a document 'which is classi-
fied occrct" and which cannot he de-classifi.A for
purposes of this ease. Eecause of this, Mr. Houston
ha u requested the Departmout of Justice to submit to
the Court under seal for in cauera inspection the
identification of the document ant the two pertinent
paragraphs, properly certified. The Court, of course,
is authorized to mac the classified excerpts available
for inspection, but not for copying, by counsel now of
record for the plaintiff and the defendant. In
addition, any of such counsel 11 be granted access
apon request to the two pertinent excerpts at the
office of fir. J:oustou. courue, counsel should not
disclo:-,e the excerpts thus nlade available.
'oincerely,
UT0.7041.6 LLNNiN,
united ;itates Attorney
CC: nr. Connally, Counsel for Defendant
Ar. J.atikaushas, Counsel for ijaintiff
houston, General Counsel, C.I.A.
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EERIK HEINE,
V.
JURI RAUS,
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Plaintiff,
Civil Action No. 15952
Defendant.
MEMORANDUM CONCERNING THE AUTHORITY OF
THE CENTRAL INTELLIGENCE AGENCY
At the continued hearing on May 13, 1966 on the defendant's
Motion for Summary Judgment, the Court requested that there be filed a
memorandum setting forth the defendant's claim as to the authority of
Ithe Central Intelligence Agency to have acted within the United States
in the manner disclosed by the affidavits of the Deputy Director of
1/
Central Intelligence, Richard Helms.
Barr v. Mateo, 360 U.S. 564 (1959) and Howard v. Lyons, 360
U.S. 593 (1959), however, suggest that the more appropriate test is
whether the challenged act is within the "outer perimeter" of the Agency's
authority.
1/ Since it does not appear that the defendant's act was discretionary on his
part, the criterion is the Agency's authority rather than that of Jun i Raus.
The defendant will contend in his closing brief, as he has already con-
tended, that, if the order or directive given him was colorably authoritative,
he possesses absolute immunity, irrespective of whether his superior acted
within the appropriate ambit of his authority or not. Any other rule would
place, an intolerable burden upon the ministerial government employee, acting
under orders and the discipline of his service, to devine the legitimate
reach of governmental power which is frequently a most difficult legal question.
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The plaintiff, raising an objection to the sufficiency of the
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Agency's authority, contends:
It cannot be argued that the defendant was performing
some function for the Agency under 403(d)(4) or (5),
either in collaboration with another intelligence agency
or at the direction of the National Security Council,
inasmuch as 403(d)(3) contains a mandate excluding parti-
cipation of the agency from 'internal security functions.'
Accordingly, statutory authority for the conduct of the
defendant against the plaintiff is non-existent. P. Br. I,
Pp. 11-21. 3/
Plaintiff's attempt to classify this case as one involving
"internal security" begs the question and reflects his counsel's own
convenient preconceptions. The attempted classification is far too
rigid.
The third Helms' affidavit recites:
The defendant was instructed to warn members of Estonian
emigre groups that Eerik Heine was a dispatched Soviet in-
telligence operative, a K.G.B. agent. The purpose for this
instruction was to protect the integrity of the Agency's
foreign intelligence sources, existing within or developed
through such groups, in accordance with the Agency's statu-
tory responsibility to collect foreign intelligence and the
2/ The plaintiff has submitted three memoranda concerning the present motion.
Each, for simplicity of reference will be referred to as follows:
(a) "Memorandum of Points and Authorities in Opposition to the De-
fendant's Motion for Summary Judgment," pp. 1-16, served February 23, 1966 --
P. Br. I.
(b) "Points and Authorities in Opposition to Defendant's Motion to Amend
Answer and in Opposition to Informal Request for Additional Hearing," pp. 1-8,
served March 31, 1966 -- P. Br. II.
(c) "Supplemental Memorandum of Points and Authorities in Opposition to
Defendant's Motion for Summary Judgment," pp. 1-10, served April 26, 1966 --
P. Br. III.
3/ The plaintiff then attempts in his memorandum (P. Br. I, pp. 12-13) to
show that internal security questions are committed by law to agencies of
government other than the C.I.A. He also claims that the burden to establish
statutory authority is upon the defendant. P. Br. I, p. 13. The converse is,
of course, correct. There is a presumption that governmental officers act
lawfully and within their statutory authority. Strothers v. Lucas, 12 Pet.
(U.S.) 691 (1837); Hammond v. Hull, 76 U.S. App. D.C. 301, 131 F.2d 23 (1942),
and 20 Am. Jur., EVIDENCE ?1707---
, He subsequently reiterates that the C.I.A. has no "internal security
functions." P. Br. III, p. 5.
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statutory responsibility of the Director of Central
Intelligence to protect foreign intelligence sources
and methods.
This is a clear statement that the Estonian emigre groups to
which the defendant spoke were sources of foreign intelligence. That
emigre groups, especially from Soviet-dominated lands, would be sources
of foreign intelligence is readily apparent. The Soviet penchant for
maintaining a closed society renders it necessary to develop unconven-
tional sources of information, in order to learn of the current geography
and topography of Soviet-dominated countries and the social, economic and
political condition of their people.
One would expect to find within such emigre groups persons who
would possess firsthand knowledge of such matters and who, by reason of
friends or family still in their homeland, would hear of such matters in
the course of various communications with them. It is also obvious that,
in view of the police-state nature of its society, Soviet intelligence would
be interested in discovering the identity of those persons within various
emigre groups who possessed information about their homeland or who possessed
the means of acquiring it. The nature of the information obtained and im-
parted, and the ultimate sources from which it came, would be of the fore-
most interest.
More subtle topics of inquiry for Soviet intelligence suggest them-
selves: Whether the sources of information may be polluted so as to impart
false information; whether the emigre groups contain members who could be
duped or recruited into Soviet intelligence activity; whether the social
and political unity of such emigre groups may be corrupted so as to render
them ineffective as further instruments of anti-Soviet activity.
The existence of foreign intelligence sources within communities
of recent emigrants is therefore quite obvious. The protection of such
groups against Soviet-dispatched agents may collaterally involve a matter
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of internal security, but that incidenta.1 or collateral condition does not
inhibit the Central Intelligence Agency and the Director of Central Intelli-
gence from executing its statutory responsibilities.
The scope of that statutory responsibility is broad. See 50 U.S.C.
?403 et seq. Among the tasks entrusted to it are [?403(d)]:
"(1) to advise the National Security Council in matters
concerning such intelligence activities of the Government
departments and agencies as relate to national security;
"(2) to make recommendations to the National Security
Council for the coordination of such intelligence activities
of the departments and agencies of the Government as relate
to the national security;
"(3) to correlate and evaluate intelligence relating to the
_
national security, and provide for the appropriate dissemi-
nation of such intelligence within the Government using
where appropriate existing agencies and facilities: Provided,
That the Agency shall have no police, subpena, law-enforcement
powers, or internal-security functions: Provided further,
That the departments and other agencies of the Government shall
continue to collect, evaluate, correlate, and disseminate de-
partmental intelligence: And provided further, That the
Director of Central Intelligence shall be responsible for
protecting intelligence sources and methods from unauthorized
disclosure;
"(I) -3 perform, for the benefit of the existing intelligence
agenc--es, such additional services of common concern as the
National Security Council determines can be more efficiently
accomplished centrally;
"(5) to perform such other functions and duties related to
intelligence affecting the national security as the National
Security Council may from time to time direct.?,
One of the specific tasks entrusted to the Agency is the protection
of intelligence sources. It cannot be successfully contended that the
method employed in this case, namely to warn an intelligence source against
compromising itself to its adversary, was clearly beyond the'Director's
authority or beyond its "outer perimeter" Moreover, ?403(d)(4) provides
that the Agency shall perform "such additional services of common concern
as the National Security Council determines can be more effectively accomp-
lished centrally." It is believed that the National Security Council Directive
No, 2, issued under this specific grant of power and attached .0 the affidavit
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of Lawrence R. Houston, General Counsel of the Central Intelligence Agency,
satisfactorily answers the plaintiff's contention as to the insufficiency
of the Agency's authority.
It is submitted that there is no substance to the claim of lack
of authority, once the Court's in camera papers are viewed, if the explicit
language of the statute did not already adequately supply the requisite
authorityforthedefendant'sconduct.,Once the emigre group is perceived
as a source of foreign intelligence -- a logically as well as specifically
established fact -- the consequent activity of the defendant is a recognized
and expected response to a contemplated threat to the security of that source.
Respectfully-submitted,
? By //, 4/ ?
'Paul R.\Connolly
5411 Albemarle Street d
Westmoreland Hills
Washington, D. C. OL 2-5851
By
7
E. Barrett Prettyman;pr.
3708 Bradley Lane (../
Chevy Chase 15, Maryland OL 6-728
OF COUNSEL: Attorneys for Defendant
Hogan & Hartson
815 Connecticut Avenue
Washington, D. C. 20006
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CERTIFICATE OF SERVICE
A copy of the foregoing MEMORANDUM CONCERNING THE AUTHORITY OF THE
.AL INTELLIGENCE AGENCY was mailed this 27th day of May, 1966 to Ernest C.
Raskauskas, Esquire, 910-17th Street, N. W., Washington, D. C., and Robert J.
Stanford, Esquire, 1730 M. Street, N. W., Washington, D. C., Attorneys for
Kaintiff.
l'aul'\R. Connolly
815 Connecticut Avenue
Washington, D. C.
Attorney for Defendant
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SEM
0100100001-2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
EERIK HEINE,
V.
JURI RAUS,
Defendant.
Civil Action No. 15952
Lawrence R. Houston, General Counsel of the Central
Intelligence Agency, being first duly sworn, deposes and says
that:
I. This statement is submitted in response to the Court's
request for a memorandum as to the legal authority of the Central
Intelligence Agency to engage in activities within the United States
with respect to foreign intelligence sources.
2. Section 102(d) of the National Security Act of 1947. as
amended, provides at Subsection (4) (50 U.S. C. ?403(d)(4)), that
for "the purpose of coordinating the intelligence activities of the
several Government departments and agencies in the interest of
national security, it shall be the duty of the Central Intelligence
Agency, under the direction of the National Security Council...to
perform, for the benefit of the e:cisting intelligence agencies, such
additi nal services of common concern as the National Security
Cou il determines can be more efficiently accomplished centrally."
f,..????? ?
)
This document will be
considered unclassified
upon removal of the
enclosures.
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3. National S:-..:ctrzi.ty Council action in implementation of
Section 102. of the National Security Act is set forth in paragraph 7
of Na'-ional Security Council Directive No. 2. attached to this
4- Attachnaerf,..s
stated
STATE OF VIRGINIA
IIS.
COUNTY OF FAIltn.k.v." )
rv,.7,grlry) 5'!) It!
t, , ? ? ,
Lawrence R. I-loaston
40.
Subf..,cribed an.-.1 Sworn. to before rrAe this 0,26 -Z-gday of Afk....a
9 6 .
Notary Pabli
My commission expire
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
EERIK HEINE
vs.
JURI RAUS
TRANSCRIPT OF PROCEEDINGS
FRANCIS T. OWENS
Official Reporter
514 Post Office Building
BALTIMORE 2, MARYLAND
SAratoga 7-7126
Civil No. 15952
May 13, 1966
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
- - -
EERIK HEINE
vs.
JURI RAUS
Civil No. 15952
Baltimore, Maryland
Friday, May 13, 1966
The above-entitled matter came on for hearing
before His Honor, Roszel C. Thomsen, Chief Judge, at three
1
o clock a.m.
APPEARANCES
For the Plaintiff:
MR. ERNEST C. RASKAUSKAS
MR. ROBERT J. STANFORD
For the Defendant:
MR. PAUL R. CONNOLLY
MR. E. BARRETT PRETTYMAN, JR.
Also present representing the United States
Government, Mr. Thomas J. Kenney, United States Attorney;
Mr. Kevin T. Maroney, Attorney, Department of Justice; Mr.
Lawrence R. Houston, General Counsel, Central Intelligence
Agency.
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MR. CONNOLLY: Your Honor, with respect to
why we were waiting, I think an explanation has been made
to you by Mr. Kenney.
THE COURT: Well, are you ready to go ahead?
MR. CONNOLLY: Yes, Your Honor.
THE COURT: I think the first thing to do
since I understand we are now going to hear argument on the
motion for summary judgment filed by the defendant is to
know exactly what is the record in this case.
Here are some papers that were filed this
morning, I gather, May 13th, two new affidavits.
Have you seen them before?
MR. CONNOLLY: I just saw them within the
last three or four minutes, Your Honor, just before we
started.
THE COURT: I thought they had been served.
MR. RASKAUSKAS: No, Your Honor. I suggeste
that I was going to serve them when I saw Mr. Connolly in
court.
served them?
THE COURT: I thought you said you had
MR. RASKAUSKAS: No.
THE COURT: Well, maybe you better read them.
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MR. CONNOLLY: I have very quickly.
In order to save time, Your Honor, my first
reading made me think that they were intended to try to
raise a dispute of fact on the basis that both of these
people quote Allikas and Keerd quote, I think Mr. Raus is
saying the information came from the Federal Bureau of
Investigation.
THE COURT: That is right.
MR. CONNOLLY: Is there anything other than
these affidavits that you care to rely on as to this motion,
in other words?
MR. RASKAUSKAS: No. They are cumulative
to the one that is in the file filed by Mr. Kuklane, except
one of these is the one from Mr. Allikas which refers to
the minutes of the meeting.
THE COURT: The one that has the minutes of
the meeting?
MR. CONNOLLY: Yes, alleged copy of the
minutes.
I understand, although it is not important,
I understand that there are two sets of minutes kept by
this New York Branch.
THE COURT: Well, do you want to put both
sets in?
MR. CONNOLLY: I do not have them here.
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THE COURT: Well, it would not make any
difference whether they are for the summary judgment.
MR. CONNOLLY: No, I do not think it is that
important.
THE COURT: So far as summary judgment is
concerned as any disputed questions of fact must be resolved
against you.
MR. CONNOLLY: Correct, sir.
THE COURT: So we have to limit it for the
sake of the motion for summary judgment to that.
Now, this file is getting fairly thick and I
would like to be sure just what the parties feel is before
the Court for decision here. Certainly the complaint is.
Let's make a list just to be sure because
there are some memoranda which have exhibits attached to
the memoranda. It is my understanding those exhibits are
not before the Court, something attached to an unsworn
memorandum.
You all filed an unsworn memoranda which has
some exhibits attached and I did not know whether you
thought you were bringing them before the Court or not, and
I think you had better be sure, and that is one of these
things, and I wanted to get it clarified as to what is
before the Court and what is not before the Court.
MR. RASKAUSKAS: Well, may I address myself
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to that point, Your Honor?
THE COURT: Yes.
MR. RASKAUSKAS: Under Rule 56, as I under-
stand it, the Court may consider all material. I can
submit it to the Court, and I do not think there is any
stricture in the rules which requires each and every exhibit
to be under oath.
THE COURT: Well, the exhibit does not have
to be under oath, but I mean it has to be vouched for.
Some of them have to be vouched for by somebody, and there
may not be any dispute about the materials which are
attached to your papers, and the Court can consider them
without having to wait.
It says:
"The judgment shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories,
and admissions on file, together with an affidavit,
if any, show that there is no genuine issue as to
any material fact and that the moving party is
entitled to a judgment as a matter of law."
Now, the ruling in every circuit, I think
except the Third Circuit, and maybe they have gotten in line
recently is that the allegations of pleading are not
sufficient to overcome an affidavit, I mean an ordinary
unsworn pleading.
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MR. CONNOLLY: Your Honor, is that
Subsection (e) of Rule 56?
THE COURT: Yes.
MR. CONNOLLY: Which I think is just
contrary to what Mr. Raskauskas just represented.
THE COURT: "Supporting and opposing
affidavits shall be made on personal knowledge, shal
set forth such facts as would be admissible in
evidence, and shall show affirmatively that the
affiant is competent to testify, and so forth, sworn
or certified copies of all papers or parts thereof
shall be attached thereto or served therewith. The
Court may permit affidavits to be supplemented or
opposed by depositions."
Well, certainly the answer, the complaint and
the answer are before the Court, and then there are a great
many motions for the taking of depositions and so forth,
which do not seem to have any real materiality except the
deposition of the defendant Raus which was taken.
There are some memoranda, and of course so
far as they still deal with matters which are before the
Court on pleadings I will consider all of the memoranda.
There is a statement, or there is a
memorandum filed by the defendant in January '65 together
with Raus' affidavit.
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Now, do the plaintiffs want that affidavit in?
MR. RASKAUSKAS: Very definitely.
THE COURT: You want that and the position
papers in that affidavit to be considered. So that the
memorandum of the 19th of January 1965 and the Raus affidavi
are to be considered as before me.
MR. CONNOLLY: The memorandum would not be,
would it, Your Honor? That is not sworn to.
THE COURT: The memorandum is not but the
affidavit is.
MR. CONNOLLY: The affidavit is.
THE COURT: Well, let's say that the Raus
affidavit with the memorandum on January 19th.
Then there is a stipulation that does not have
much to do with it. There are interrogatories which have
never been answered. The interrogatories have not been
answered.
MR. STANFORD: No, we received no answers,
Your Honor.
for
THE COURT: I gather that/the purpose of this
motion for summary judgment, they are based entirely on the
point of privilege. You have gone as far as you can
practically go under the Court's ruling in the deposition of
Raus; is that right?
MR. STANFORD: Your Honor, we do not hold tha
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the sole consideration here is the Barr v. Matteo doctrine.
We say that there are genuine issues of fact which would be
outside the purview of that governmental immunity doctrine.
THE COURT: I understand that, but I mean,
you are satisfied to go ahead with the motion for summary
judgment today without pressing further for answers to
interrogatories?
MR. STANFORD: Yes, Your Honor, we are.
THE COURT: All right.
MR. STANFORD: This does not mean that we are
waiving the answers to those interrogatories. We think it
is improper, but we think that the Government has taken a
stand whereby they will not respond to the interrogatories.
So that they have in effect--
THE COURT: So that in effect it is the same
point that stops the--
MR. STANFORD: That stopped the deposition
of Mr. Raus.
THE COURT: That stopped the deposition of
Raus, that would stop any interrogatories that would help
you?
MR. STANFORD: Yes, sir.
THE COURT: That is what I meant that one
ruling covers in effect both of them. All right.
Then there are three, I think, affidavits of
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Mr. Helms. I think there are three, aren't there?
MR. CONNOLLY: Yes, Your Honor.
THE COURT: In which there is the formal
claim of privilege. Then there is this memorandum of
points of the defendant, which I take it is just a brief.
Then there is a memorandum of the plaintiff in opposition
to it, which again is just a brief, I believe. I do not
belittle briefs, but it has not got evidence.
Then you have along with it the affidavit of
August Kuklane. That is to be before the Court. Is that
right?
MR. STANFORD: Yes, Your Honor.
THE COURT: The affidavit of Kuklane. Then
attached to that are these other documents which have not
been sworn to but are filed by the defendant.
Are these before the Court in some way?
The April 28, 1965 letter from Prettyman to
Raskauskas. The letter--I do not see the date. It must
be the--
MR. CONNOLLY: From Tammark.
THE COURT: From Tammark?
MR. CONNOLLY: Tammark.
THE COURT: To Raskauskas, and the letter
from Collins to the Court.
Are they supposed to be before me now? Does
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either side think that these are before me?
MR. RASKAUSKAS: Yes, Your Honor. I take
the position that documentary and other evidentiary
material, which these letters are, may be considered
by the Court on a hearing for summary judgment, and I
rely on Moore here.
THE COURT: What did he say?
MR. RASKAUSKAS: It says, materials on which
motion may be heard. The material which the Court
is entitled to consider on a motion for summary judgment
are the pleadings, affidavits, which meet the testimonial
requirements of Rule 56(e), depositions, anawers to in-
terrogatories, Rule 56(e) as amended in '53, admissions,
oral testimony, documentary and other evidentiary materials.
The Court shall also consider facts which are the sub-
ject of judicial notice, and the same reasons that warrant
their use at trial warrant their use at the summary
judgment hearing.
THE COURT: Well, I do not understand that
that means that affidavits must have all these protections
and just because you put it, somebody puts it in a letter
that it automatically becomes evidence without being
sworn to. That does not make sense to me.
I have never understood that tip be the law,
and I do not understand that Mr. Moore says so.
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I see your point. He says something about
documentary and other evidentiary material. I think that
was the word, wasn't it? It does not say that just a
letter is admitted or can be considered as being proof of
the facts stated in it.
Now, it may be quite possible to get this in
or stipulate it in, to either stipulate it in today for
whatever purpose it is wanted or to find some way perhaps
to get supplementary affidavits so that we will not be doing
this thing piece by piece.
I want to get the record complete so that when
I do make a ruling one way or the other I will have the whol
thing and will not have to go back and do it again because
in your supplemental memorandum of points you have a letter
from Mr. Hoover of the FBI to Raus. I do not doubt, they
seem to be copies, and they look like copies of the letterhe
and some other correspondence.
It may be that they can be stipulated as to
competency as though there were objections as to relevancy
and materiality on the issues raised.
Can something be done on that? I want to
know what I am to consider and what I am not to consider.
I believe this stuff is in two lots: One,
the material attached to the first memorandum of the
plaintiff and the other material attached to the second.
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MR. CONNOLLY: When you say my position, for
the record, so that we will know what we are dealing with,
would object to the three documents which Your Honor has
described, the letter from Barrett Prettyman to Mr.
Raskauskas.
THE COURT: Let's take them one at a time.
These are the papers attached to Document No. 13. Now,
the first one is the letter from Mr. Prettyman to Mr.
Raskauskas. I do not suppose there is any question of
competency.
MR. CONNOLLY: No, it is completely immateria
to the issues. That is what I am saying.
THE COURT: Well, do you want that considered
I have not read it. You want that considered?
MR. RASKAUSKAS: Yes, Your Honor, and without
belaboring the point, to restate our position, these are
exhibits which tend to show to the Court that there are
genuine issues of fact. Now, at the trial we will have
the original documents duly authenticated.
THE COURT: Well, there is no question--
MR. RASKAUSKAS: Proven and put into
evidence.
THE COURT: Well, there is no question of
authentication. You do not need an authentication of a
photostat or a Xerox copy, or whatever it is, of Mr.
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Prettyman's letter to you. He certainly admits that this
is a copy of his letter, and it is his calling on you for
something, and I suppose it might be evidence on your claim
of waiver.
He asked you to produce certain things, and
if you say you waived it, this might be evidence on that
point.
Now, as to this document, the letter of 28
April '65 I would say, you object to it on relevancy and
materiality.
MR. CONNOLLY: Your Honor, and also because
I think it also requires an explanation. Just to leave
it stay there unexplained, and the circumstances under which
the letter was sent, I think it is misleading.
THE COURT: Well, I think if they want it in,
if they have been operating under a mistaken theory of the
law of what may be considered on motion for summary
judgment I would not want to hold them to that, and I think
we ought to try to get them in.
mean if Mr. Raskauskas thinks or has
thought that just by attaching this to his memorandum it
became admissible to be considered, that something must be
considered on a motion for summary judgment I certainly
would not want him foreclosed from any benefit he may have
of it by not having it part of a document which was sworn
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MR. RASKAUSKAS: May I say one thing which
may clear this up, Your Honor, from our point of view?
The letter and the documents, with respect to them we take
the position the Court is not going to weigh these as
to credibility.
THE COURT: That is right.
MR. RASKAUSKAS: As evidence. The Court wil
consider these exhibits to determine whether or not there is
an issue of fact that must go to trial.
THE COURT: Well, I know but you do not
consider that in the law unless it is presented to the
Court in some proper manner. Even alleging it in your
complaint or the defendants alleging it in their answer is
not something which can overcome an affidavit according to
the rule, as I say, I believe of every Circuit except the
Third Circuit.
MR. CONNOLLY: Your Honor, I would have no
objection to it going in providing Mr. Raskauskas would
agree that the letter was a letter sent to him prompting
him to give us information which he promised to give us
during the course of Mr. Heine's deposition; and two, that
the information which was called for in the letter, and
which he promised to furnish in the course of Mr. Heinets
deposition, had not indeed been furnished.
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MR. RASKAUSKAS: I never promised Mr.
15
Connolly anything, and if we have the original copy of the
deposition we can look at it. I said I would informally
submit these materials, and we did. We looked around.
We could not find my client's war medals because he was in
three Soviet camps. He did not carry them around, and
that is why I did not give them to Mr. Prettyman.
MR. CONNOLLY: Well, that being so, Your
Honor, I think Mr. Raskauskas will have to proceed as best
he knows how to prove the matter.
MR. RASKAUSKAS: I can do that.
THE COURT: Well, all right. It does not
seem to me that that is--
MR. CONNOLLY: Material.
THE COURT: On the question of materiality
on this present issue.
The point that does seem to me to have some
basis on the issue of waiver is that the deposition, Heine's
deposition was taken, and certain material was requested,
and certain material was supplied, and if some material has
not been supplied it is not before me now or why it was
not. So I think we can dispose of that letter in that way.
Now, the next one is a letter which is from a
man named Tailliaark to Mr. Raskauskas.
Now, what purpose is this letter-1 have not
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read it. I may have read it at one time. I have not rea
it recently.
For what purpose do you want the Court to
consider that letter?
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MR. RASKAUSKAS: Well, the purpose we are
going to ask the Court to consider that letter is that a
man by the name of Mr. LaVenia that went out and saw Mr.
Tammark and told him that he has interviewed thirty-three
people around this country and Canada, and we attempted to
depose Mr. LaVenia the other day, and I understand from the
reporter that he wanted to read and sign his deposition,
and it is not filed with the Court.
have a copy of it here, and we learn now
that this man is associate counsel in this case. He has
been retained by Mr. Connolly. This Mr. LaVenia is the
same man that while we were taking the deposition of Mr.
Heine here was up at Mrs. Heine's house trying to get into
her house to see her.
So we think it is very relevant.
THE COURT: Well, then, you ought to have it
sworn to to be before me. I can't just take a letter to
you from a man named Tammark as proof of facts in a case.
I do not know. In the first place I do not
know whether it is really a letter from him or not. There
is nothing, just that a man is out in Wisconsin, and he
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writes you a letter or purports to be a man in Wisconsin,
and he writes you a letter.
Now, no doubt he did, but I do not understand
that that is material which can be considered on a motion
for summary judgment apart from some sort of a stipulation
waiving competency.
Now, if Mr. Connolly will agree that it can
be considered to the same extent as if it was sworn to as
an affidavit for summary judgment without waiving his right
to have the opportunity to cross-examine the man before it
might be considered on the merits, that would help to
expedite matters.
MR. CONNOLLY: I will not, sir.
MR. STANFORD: We ask then, Your Honor, that
it be considered as if it was sworn to and based, of course,
upon the fact that we will submit within as short a time
as possible that same letter in affidavit form.
THE COURT: You will supplement it with an
affidavit?
MR. STANFORD: Yes, sir.
THE COURT: And I will assume that you will.
MR. STANFORD: Yes, sir, and if that is done
well, of course, then we have to proceed further.
THE COURT: Yes, that is the practical way.
Mr. Tammark to be supported by affidavit.
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MR. RASKAUSKAS: In view of that, Your Honor,
I request that the Court strike all statements and
testimony, unsworn testimony, given by the various counsel
from the floor, including Mr. Houston's testimony the last
time that Raus was paid directly and indirectly.
THE COURT: I thought that was accepted in
lieu of testimony. Those statements were accepted.
Well, let's see. Is Mr. Houston here. All
right. Let Mr. Houston come on and take oath, if he will,
that those statements are true.
We are not accustomed to requiring that in
this Court, but counsel frequently make statements of fact
which are accepted by counsel, other counsel to the same
extent as if they were testimony, with the understanding
that they can be cross-examined, but if you want to have
that fact--
MR. RASKAUSKAS: Well, Your Honor, my
objection last time was that it was not susceptible to
cross-examination. I was asking Mr. Raus these questions.
It has nothing to do with Mr. Houston's credibility.
It is
the fact that a gratuitous statement was made in this Court,
and I was precluded from any inquiry.
THE COURT: No. I thought you accepted the
fact of how he was paid. That is, there was certain
testimony made as to his being paid.
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MR. RASKAUSKAS: I accepted the fact, Your
Honor, that Your Honor made the request if we required the
solemnity of an oath to use this more or less as an
addendum to Mr. Helms' third affidavit rather than to ask
Mr. Helms to come up with a fourth affidavit, and I said
we make all of our objections other than requiring that this
be sworn to.
THE COURT: All right.
MR. RASKAUSKAS: Now, I do not require that
it be sworn to today either; but my position is that it
should not be considered.
I am only asking the Court not to consider
any of these matters that we have not had a shot at in
cross-examination on either.
THE COURT: Well, you want me to consider
your affidavits. I am not quite clear what point this is.
Mr. Helms has made certain affidavits as to what people were
told.
You question his veracity; is that it?
MR. RASKAUSKAS: I am not making any comment
on his veracity. Our position is that the affidavits are
conclusory suppositions.
THE COURT: Well, all right. They are
perfectly good points. They are perfectly good points
that you make, that they do not tend to prove it, but then
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you get into a question of how he was--
MR. CONNOLLY: Can I refresh Your Honor's
recollection?
THE COURT: I thought the matter had been
worked out in a way that the statement was accepted as the
equivalent of an affidavit.
MR. CONNOLLY: May I refresh your recollec-
tion? It is page 41 of the transcript, Your Honor, or
rather excuse me, 47 .
(Transcript was handed to the Court.)
THE COURT: Well, I understand. The point
was made that they had no right to say what was secret or
what was not secret.
Now, has the Government concluded that it is
asserting that Raus was paid but will not say how he was
paid? I just do not understand that whether he was on
the--you have disclosed that he was acting as your agent,
so I do not understand, and you are saying that he was paid,
and there is some other testimony as to what he was paid,
and there was no objection to his saying that he got certain
amounts from the Bureau of Public Roads and he got certain
amounts from his Army service.
Why should not the Government say, if you say
he was paid for what he was doing, why shouldn't you--if you
are willing to stand on the point whether he was paid or not
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is immaterial, whether he was paid or not for services on
behalf of the CIA, then I will have a clean question to
decide, and if you decline to say whether he was paid, then
you will just have to stand on the basis and the Court will
assume that that fact is disputed.
I think you can claim privilege but I do not
see how you can make statements of fact like that and say,
"We will go up to this point and then stop."
MR. MARONEY: Well, Your Honor, the statement
was made to that point only in response to an inquiry as to
whether or not that could be made, that statement could be
made on the record, as I understand it.
THE COURT: Well, you say can be made. Well
I am doubtful whether I can accept it because if he was paid
through another agent, if he was given something by another
agent, I can see that you are entitled to the privilege.
If he was paid, if you say he was paid
through the Bureau of Public Roads it seems to me that is
between you and Congress and Comptroller General. I do
not see why it is a matter of privilege. I do not see how
there can be any privilege.
MR. MARONEY: As I understand it, Your Honor,
the method of payment, Mr. Houston advises me that the
method of payment has classified aspects, and we are
unwilling to go beyond the statement previously made, that
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from the executive privilege standpoint the Government is
forced to take that position.
THE COURT: The benefit of privilege. The
method of payment has some classified aspects.
MR. CONNOLLY: Your Honor, 403 g gives the
answer.
THE COURT: "In the interests of the security
of the foreign intelligence activities"--50 United
States Code, Section 403 g.
"In the interests of the security of the
foreign intelligence activities of the United States
and in order to further implement the proviso of
Section 403 (d) (3) of this title that the Director
of Central Intelligence shall be responsible for
protecting intelligence sources and methods from
unauthorized disclosure, the Agency shall be exempte
from the provisions of Section 654 of Title 5, and
the provisions of any other law which require the
publication or disclosure of the organization,
functions, names, official titles, salaries, or
numbers of personnel employed by the Agency:
Provided, that in furtherance of this section, the
Director of the Bureau of the Budget shall make no
reports to the Congress in connection with the Agency
under Section 947 (b) of Title 5."
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That is what I guess this morning's paper is
talking about, isn't it? That Congress, that one of the
Senators was a little disturbed about some of those people.
Well, I am not sure that it applies. It may
or may not; but when you say that he was paid, that you are
willing to say that he was paid but are not willing to say
whether he was paid by your Agency or by some other agency.
MR. MARONEY: That is right or the method of
payment.
THE COURT: Or the method of payment. Then
I suppose I have a minor question to decide as to whether I
can consider your statement that he was paid because it is
not subject to cross-examination.
I am not sure that is fatal to the defendant's
position, but I have got to decide whether it can be
considered or not.
As I understand it, they will not go any
further so I think the issue is sharply drawn, and it is a
point for decision.
MR. CONNOLLY: To refresh Your Honor's
recollection a little bit further, you will also recall
that Mr. Raus testified to that also under oath; so to the
extent that an oath is missing it was supplied by Mr. Raus,
the same language that Mr. Houston alluded to.
THE COURT: That he was paid directly.
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MR. CONNOLLY: Directly or indirectly.
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THE COURT: Yes.
MR. RASKAUSKAS: I do not remember that.
MR. CONNOLLY: Yes, Your Honor. I will be
happy to show you if I can.
THE COURT: All right, show it to me.
MR. PRETTYMAN: That is at transcript 51 and
52.
said."
MR. CONNOLLY: "You heard what Mr. Houston
Mr. Raus said, "Yes, sir.
"The Court: Is that true?
"The Witness: Yes, Your Honor."
THE COURT: Who asked the question?
MR. CONNOLLY: You did, Your Honor.
THE COURT: I can't blame the plaintiff's
lawyers for that then.
MR. CONNOLLY: "All right, the question is,
well, in view of the instructions they have given
him that he was paid indirectly by CIA during the
time in question I will allow since CIA said it,
you may ask him if that is--since Mr. Houston has
said it, you may ask the defendant if that is true
and just let him answer yes or no.
"The Court: You heard what Mr. Houston said
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"The Witness: Yes, sir.
"The Court: Is that true?
"The Witness: Yes, Your Honor."
THE COURT: Did I ask the question? I said
I thought they might ask.
MR. RASKAUSKAS: No, sir, Your Honor asked
that and then Your Honor advised me:
"You understand I am giving you your exception?
You have exceptions without taking them."
And I said, "Yes, Your Honor," but we objected
right along the line.
THE COURT: With respect to being able to go
further.
MR. RASKAUSKAS: Yes, Your Honor.
THE COURT: I understand. The thing is, did
you adopt the Court's question or not? Up to that point
did you want that much?
MR. RASKAUSKAS: No, we did not. Now, we
did not want that. We objected to that.
THE COURT: I think you should not be held to
adopting the Court's question.
MR. CONNOLLY: I adopt it.
THE COURT: What is that?
MR. CONNOLLY: I adopt it.
THE COURT: Well, I have got to rule then
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whether without cross-examination--
MR. CONNOLLY: Well, you see I would have
had the right of cross-examination, Your Honor. I did not
put that question since it was already in the record.
THE COURT: Well, you could not have gotten
that, but you would have had the same objection because
they will not let him say how.
MR. CONNOLLY: Yes, but I want to go that
far, Your Honor.
THE COURT: Yes.
MR. CONNOLLY: I want to go that far.
THE COURT: All right.
MR. RASKAUSKAS: Or he could put in a fifth
affidavit of Mr. Helms.
MR. CONNOLLY: I do not have to because unde
the rules I can use any part of a deposition. If you do
not take all of it, if you leave out a part which I am
entitled under the rules to use, I can use the part that yo
do not use, and if you do not care to use it, if you do not
care to use this language on page 51 and 52, I do.
THE COURT: Well, on summary judgment I can
consider whatever the Court feels is proper, and I will
indicate when I have considered something in over objection
it will mean that I have overruled the objection.
I do not know how many of those occasions
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there will be, but you will have your points at any rate.
All right. Then, there is this Tammark
business.
Then, there is a letter from Jeremiah C.
Collins to the Court.
What is the point about that?
MR. RASKAUSKAS: That was on a question of
good faith, Your Honor, where they asked that this case not
be called for trial. Mr. Collins of the firm of Hogan &
Hartson wrote a letter to the Court explaining that they
had to answer all these interrogatories, and so on and so
forth, and then subsequently about a month after that letter
they came up with this new defense and never answered the
interrogatories.
So we feel that letter is very relevant on
the question of good faith.
THE COURT: Well, then, its relevancy and
immateriality is objected to, and you are not objecting to
the competency of Collins?
MR. CONNOLLY: No, Your Honor, and in order
to sharpen the issue before the Court if Mr. Raskauskas
wants that portion of Mr. Tammark's letter in which it says
that Mr. LaVenia told Mr. Tammark that he talked to thirty-
three witnesses all over the United States and Canada I do
not have any objection to that going in; but I do have the
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objection of a lot of conclusions and self-serving matters
that Mr. Tammark has in his letter which even if it was
under oath would not be admissible.
THE COURT: It might not be admissible but it
might be enough because he says it is a question of
relevancy and materiality.
MR. CONNOLLY: And competency there, Your
Honor. For example, a man who draws opinions and conclu-
sions which he is not permitted to give an opinion or
conclusion as to what Mr. Heine is or is not even if he were
here on the witness stand, he would not be permitted to do
that.
THE COURT: Well, what you are saying is that
so far as the position is concerned the Court has to assume
that he was slandered, don't I, for the purpose of this
motion?
MR. CONNOLLY: Yes.
THE COURT: I have to assume the truth of
the plaintiff's claim.
MR. CONNOLLY: Correct.
THE COURT: The truth of the statements for
the purpose of this motion for summary judgment.
"Shall show affirmatively that the affiant
is competent to testify to the matters stated therein
Of course, I will have to pass on when this
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letter is turned into an affidavit, what Mr. Connolly is
saying, whether it is a letter or whether it is an affidavit,
it must meet the test of (e).
Well, I will just have to pick and choose of
what is properly admissible and what I consider relevant
and material on any issue that is to be an issue in the
case at this time.
Then some more points and authorities, and
then this affidavit and the question of little difficulties
between counsel.
MR. RASKAUSKAS: That is not relevant to the
motion, Your Honor.
THE COURT: I do not think so at the moment.
MR. CONNOLLY: I suggest the motion and the
motion to amend the amended answer, Your Honor.
THE COURT: Where is that? What was the
date of that? Do you have that?
Well, here is a motion to amend the answer.
MR. CONNOLLY: Yes.
Yes, and your order permitting it.
THE COURT: And the order.
MR. CONNOLLY: The order is dated March 21st
THE COURT: Yes.
MR. CONNOLLY: I am not sure it was dated
March 21st, but it was mailed March 21st.
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Yes. Then, there is Mr. Helms'
affidavit based on the papers attached to them, and I guess
the motion for a protective order, and that is as far as it
may have any bearing on it, and then another affidavit from
Mr. Helms and the amended answer.
Then, the supplementary memorandum of points
and authorities in opposition to defendant's motion for
summary judgment.
Now, that is argument again except that there
is attached to that these various letters.
MR. CONNOLLY: What letter are you speaking
of?
THE COURT: I think there are five letters.
First there is the letter of 18th of December '63 from
Hoover to Landra.
MR. RASKAUSKAS: Your Honor, that is already
testified to in the deposition of Mr. Heine, and I think Mr.
Connolly will agree to that.
THE COURT:
Well, you need not worry about it.
I do not suppose there is any question of competency.
MR. CONNOLLY: There is a document, a very
material document that is missing, namely, the letter which
prompted this reply; and if Mr. Raskauskas will supply that
then I have no objection.
MR. RASKAUSKAS: Mr. Landra's letter? I thin
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I have that. I will look for it, Your Honor. I am quite
sure I have it, and it was identified as an exhibit in the
deposition, if I am not mistaken.
THE COURT: Well, you would add, it is
agreeable if Landra's letter to Hoover is included?
All right.
MR. CONNOLLY: Also, Your Honor, I did not
know we were getting into this, but we also have a letter
from Mr. Hoover to Mr. Raus.
THE COURT: Yes.
MR. CONNOLLY: Two of them.
THE COURT: Yes.
MR. CONNOLLY: I do not think I have Mr. Raus
letter that prompted that reply. I have no objection if
the Raus letter which went to Mr. Hoover to which the Hoover
letter purports to be a reply was also put in evidence.
THE COURT: Do you have that?
MR. CONNOLLY: I do not have it with me, Your
Honor. I can get it, and I had no idea we were to take up
these matters because like you I did not think these were
before the Court, and I really do not think they have any
materiality whatsoever to this motion.
And so I do not suggest that Your Honor delay
consideration of the motion on account of it.
THE COURT: If they can be stipulated and
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added, I think I want to get the record complete and not
have a motion for reconsideration by one side or the other
because something was not included that should have been
included. I want to try to clean it up.
Now, then, the letter of May 10, '63 from
Hoover to Raus.
MR. CONNOLLY: Do I have an agreement from
Mr. Raskauskas, Your Honor?
THE COURT: You mean on these other two
letters that you are going to supply one letter and he is
going to supply one letter to round out the correspondence;
is that it?
MR. CONNOLLY: Well, I said that I would be
willing to accept these as part of the record if Mr.
Raskauskas would agree that that may be done. I have not
heard his response to that.
MR. STANFORD: We will agree to that, Your
Honor.
THE COURT: All right. That is fine. Then
this letter of the 10th--I am not clear what materiality
this letter to Hoover--
MR. RASKAUSKAS: Well, we think it is
relevant on the question of a purported CIA dispatch
operative writing letters to Mr. Hoover asking him about
whether he gives clearances or nonclearances, and we are
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very interested in seeing that letter. That was Mr. Hoover'
response.
THE COURT: That is a letter of April 6, '64.
MR. RASKAUSKAS: Yes.
THE COURT: He is talking about the one in
which they talk about "Masters of Deceit."
MR. RASKAUSKAS: Yes.
THE COURT: I did not see the point of it
when I read it.
MR. RASKAUSKAS: With respect to the relevancy
to the April '63 letter?
THE COURT: No, no. No, I am not talking
about that. That is a different one.
MR. RASKAUSKAS: Of the May '63 letter?
THE COURT: Yes, the May '63 letter. Well,
you know what it is.
MR. RASKAUSKAS: Yes, I remember it. That
is the one from Mr. Hoover discussing his book.
THE COURT: Yes, that is right.
MR. RASKAUSKAS: On communism.
THE COURT: That is right.
MR. RASKAUSKAS: Well, we thought at the time
and still think that some facts can be developed to show
that perhaps Raus was trying to make a contact to be used
by the FBI and got turned down.
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THE COURT: I do not see the materiality of
that on this present motion. There is no doubt I gather
that this letter--do you know what this letter is?
MR. CONNOLLY: You mean the one where he
talked about--
THE COURT: Yes, Mr. Hoover--
MR. CONNOLLY: The complimentary letter?
THE COURT: No, I have not got the
complimentary letter, but we have Mr. Hoover's reply, which
is certainly no secret.
MR. CONNOLLY: Certainly; no objection to
that.
THE COURT: Now, the next is a letter--I am
not clear what it is. This is from Meeme Malgi. Is that
it?
MR. STANFORD: Meeme Malgi, I think it is.
THE COURT: Meeme Malgi. What is it? Wha
is it about? In the first place it is practically
illegible, and does it have any materiality?
MR. RASKAUSKAS: There is a translation with
it, Your Honor.
THE COURT: No, I do not mean the one, I do
not mean the one in Estonian, but I mean the one in--
MR. RASKAUSKAS: The letter of transmittal.
THE COURT: I guess that is just a letter of
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MR. RASKAUSKAS: That letter of transmittal
is not relevant, Your Honor.
THE COURT: Well, I do not think it makes any
difference except it vouches for--does Mr. Raus deny that he
sent this letter?
MR. CONNOLLY: I have not taken it up with
him, Your Honor.
I do not know the accuracy of the
translation, sir; so I must interpose an objection.
THE COURT: You say you are?
MR. CONNOLLY: Yes, sir.
THE COURT: Well, why not? Isn't he here?
MR. CONNOLLY: No, sir.
THE COURT: Well, why don't we find out? I
mean, they can turn that into an affidavit if it was
received, but I certainly would allow him to say, to be
asked whether he sent this letter.
MR. CONNOLLY: Certainly I question the
translation, Your Honor. I can't vouche for the accuracy
of the translation.
THE COURT: Well, if he is available why don't
you check with him, and if the translation is accurate we
can consider it for what it is worth?
MR. CONNOLLY: And I will be happy to get him
to provide his own translation.
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THE COURT: All right, provide his own
translation, and we will have two and if I feel it is of
sufficient importance I will pick a neutral translator. I
may not think it is sufficiently important, and there may not
be that much difference between the two versions.
All right. This is the letter of Raus--well,
the letter is just addressed to "comrade." It is not
addressed to anybody.
At any rate, it is a question of sending a
letter to "comrade" and I suppose that is the question, and
that is where the letter comes from because otherwise it
does not say to whom it was written.
Now, then, we have the claim of privilege, and
the supplemental memorandum of the defendant, which again is
argument.
There is the deposition of Raus. The deposition
of Heine is not before me, the plaintiff.
The deposition which the defendant took of
Heine has not been filed.
MR. RASKAUSKAS: Yes, Your Honor.
THE COURT: Has it been filed with the Court?
Is that supposed to be before me?
MR. RASKAUSKAS: Yes, Your Honor. That is
924 pages of testimony.
THE COURT: I am supposed to read that as part
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of the motion for summary judgment? Will you point out
the portions that you want me to read, that you are relying
on or that you feel are important so that I do not get
bogged down?
MR. STANFORD: I think that they will be
brought out during the hearing, Your Honor.
THE COURT: All right.
MR. STANFORD: And I think that we can point
out at a later time the specific areas if we reach that
today.
THE COURT: All right.
Then, there is this letter or notice of the
taking of the deposition of LaVenia. Is LaVenia's deposi-
tion to be before the Court?
MR. RASKAUSKAS: Well, it has been unsigned,
Your Honor, and I understand from Mr. Connolly that he wants
to read it and sign it.
MR. CONNOLLY: He is right.
THE COURT: Well, I say, once that has been
done, is it to be considered before the Court at this time
on the motion or is it not to be considered before the Court
on the motion?
MR. CONNOLLY: I am at a loss to understand
what possible relevancy there is in that deposition. The
man said he had no knowledge whatsoever as to whether Mr.
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Raus was working for CIA or was not working for CIA.
THE COURT: Well, I do not know since I have
not seen it I have even less idea of what relevancy it may
have.
Does either side want me to consider it?
MR. RASKAUSKAS: Yes, Your Honor.
THE COURT: Well, then, we will have to wait
until he has signed it and it has gotten sent in. The
deposition of LaVenia--
MR. CONNOLLY: I hope during the course of
these remarks Mr. Raskauskas would illuminate for all our
benefit just how that deposition becomes material.
MR. RASKAUSKAS: I will be delighted to do
that.
THE COURT: All right.
Then, we have the notice which was filed on
the 3rd of may by Mr. Raskauskas and Mr. Stanford stating
that they were going to take some procedures in accordance
with Section 16 of Executive Order No. 10501.
I understand that whatever was done--well,
suppose you make your statement on that. Is that to be
before me or to be considered by me?
MR. STANFORD: No, Your Honor, that is not to
be considered by the Court n this motion.
THE COURT: All right, and then these two
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new affidavits are to be considered.
MR. STANFORD: Yes, Your Honor.
THE COURT: And the minutes attached to it
are part of the affidavit. Now, does the defendant want
to--the defendant said that they had another version of the
minutes, but I do not see that you gain anything by putting
it in.
MR. CONNOLLY: No, sir.
THE COURT: Well, we seem to have accumulated
a record. That is about all we have done so far. I think
we understand now what is before the Court.
Does anybody want to put anything else in the
record?
MR. STANFORD: Not at this time, Your Honor.
do not think we could add anything to what has been
presented.
THE COURT: Do the defendants want to put
anything in?
MR. CONNOLLY: Nothing, Your Honor, other
than the two documents I said I wanted.
MR. RASKAUSKAS: What?
MR. CONNOLLY: The two letters.
THE COURT: Well, we get down then, I suppos
now to something between the plaintiff and the defendant.
Does the Government have anything more it
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MR. MARONEY: No, Your Honor. We have no--
we are not here in the role of advocating the motion on
behalf of the defendant. I think it should be made clear
that our role has been limited to being here for the
purpose of authenticating, so to speak, the affidavits
which have been submitted on behalf of CIA and also to
represent the CIA in connection with the claim of executive
privilege, and, of course, we have taken no position with
respect to the merits of the motion pending.
THE COURT: That is right.
Well, I think it would be well to have a
clarification at this time now that we know what the record
is, exactly what points each side is making.
The defendant is making a motion for summary
judgment, but the motion was made before, or the motion
originally was made before claim of privilege was put in;
so some of the argument about the insufficiency of the
claim of privilege has probably been washed out. Now,
however, the claim has been made by the Government, and
some of the things we have said are no longer--
MR. STANFORD: Some of the things have been
removed, Your Honor, but we believe that there are still
many defects in form which we will bring out.
THE COURT: All right. Now, you have not
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filed anything since the claim of privilege by the
Government. Do you have a brief with you today that you
are going to file or you say there are still some defects
that you will bring out? Is this to be done entirely
orally or what?
MR. RASKAUSKAS: Yes, Your Honor. I antic-
ipated that we would proceed today with counsel for the
defendant arguing their motion, and then Mr. Stanford and
myself would respond to it.
I believe in the course of my response I expec
to make a speaking motion under the rules, and if Your Honor
cares to consider the motion in that fashion I think that we
can have a more orderly procedure.
THE COURT: You mean to let them argue first
and you make a speaking motion as part of the argument?
Why not have the whole motion first and let's see where we
are?
MR. RASKAUSKAS: Then I will just say briefly
and I will argue the motion later, but I would like to make
a speaking motion at this time under Rule 56(f),and I would
like to read the salient part of the rule:
"When affidavits are unavailable. Should it
appear from the affidavits of a party opposing the
motion that he cannot for reasons stated present by
affidavit facts essential to justify his opposition,
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the Court may refuse the application for judgment
or may order a continuance to permit affidavits to
be obtained or depositions to be taken or discovery
to be had or may make such other order as is just."
Now, I did not think it was necessary to file
a motion and affidavit under 56 (f), bring them to the
attention of the Court where the information is not
available because as the Court observed this because of the
peculiar circumstances of this case.
When Mr. Raus gave his deposition here in oper
court, I think the Court can take notice of the fact that
we are very strictly proscribed in the area, the factual
area, that we want to develop.
So we are asking not for more time to get
affidavits or to take depositions but we are asking under
the last part of that rule that the Court make such other
order as is just, and that order, we are moving, is to have
as full and complete a hearing on the matters, particularly
this first defense of official immunity, in as full a trial
as is possible; that in cases, and there are many
authorities which we can cite, when the crucial facts are
largely within the knowledge or control of the moving
parties, and the plaintiff does not have the opportunity
for cross-examination, the Court does not have the
opportunity to observe the demeanor of witnesses, in cases
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where there are great and complex legal questions involved,
it is a sounder policy to permit the matter to go to trial
so that as many possible facts as can be developed are
brought out.
So we think that this is an appropriate
application of Rule 56 (f), that the Court enter an order
denying the motion for summary judgment and permitting this
matter to go to trial so that all possible facts in this
case can be developed and that so these affidavits which
have been submitted, that we may have the witness and place
these statements in the crucible of cross-examination and
see what can be developed in the interest of arriving at
the truth.
THE COURT: Well, let's see. What do you
understand the issues to be here? The Government has
certainly claimed privilege or the Government has asserted
its privilege, has it not?
MR. RASKAUSKAS: Yes, sir.
THE COURT: Now, if the Government has
asserted its privilege, the question is, where do we go from
there, or what remains open?
MR. STANFORD: Your Honor, we feel that that
particular area does not have any effect whatsoever on
Rule 56, and we feel that the proper procedure in this case
would be to have the defendant in this case, who is the
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moveant with regard to summary judgment, state the points
for his motion, to state the points for his argument, and
we will meet or answer the points that he brings up on the
objections which we have set forth in our memorandum.
THE COURT: Well, do you have any new brief
or not?
MR. CONNOLLY: No, Your Honor, I tried as best
I know how to state my position precisely and simply in the
supplemental memorandum which was filed at the time of the
last hearing.
THE COURT: Well, how long do you want? It
is now four o'clock. How long does each side want to argue?
MR. CONNOLLY: I think I can state my opening
position in fifteen minutes.
THE COURT: All right. We had a very long
hearing this morning. The question is whether we could do
any better, to let each side state its position and then
supplement it with written memoranda. I would like to know
each side's position, at least to get that part of it, which
may or may not produce the need for some further development
by brief.
MR. CONNOLLY: I take it, Your Honor, that Mr.
Raskauskas and Mr. Stanford really do not dispute Barr vs.
Matteo and Howard vs. Lyons. As I understand their position
and I am presenting this just to find out how far we can
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simplify the argument, as I understand their position they
say that it is the burden of the moveant in this case, Juni
Raus, to produce facts which would bring him within the
doctrine of Barr vs. Matteo, and they say that Mr. Raus,
perhaps through his own fault, perhaps through no fault on
his part, is unable to provide that information because
such information as he does provide is not subject to
cross-examination, and therefore the Court should reject
the offers of proof which he makes, and since he cannot on
his own efforts bring himself within Barr vs. Matteo his
motion must fail.
Now, that is what I understand the plaintiff's
position to be. Maybe I have oversimplified it or
understated it; but if that is so I think we can come very
quickly to the point.
I do not like to ask counsel if I have
accurately stated their position.
MR. RASKAUSKAS: Well, I object to that, to
him stating my argument. I would rather state my own
argument.
THE COURT: Well, he has a right to state
your argument as he understands it.
MR. RASKAUSKAS: I would rather do it.
THE COURT: Well, he is stating your argument
if that is the way he wants to argue his case, he can.
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I had asked him what his position was, not
what his understanding of your position was. Do you have
any points other than the weakness of the plaintiff's
points?
MR. CONNOLLY: Certainly, Your Honor. I was
trying to shorten the argument if I could.
THE COURT: Well, all right, because I want
to know what your points are because--
MR. CONNOLLY: Yes, my position is--
THE COURT: Because it is not clear to me.
MR. CONNOLLY: My position is, Your Honor,
that at the time Mr. Raus spoke, on those occasions about
which complaint was made, that he was on each occasion an
employee of the United States of America; that he was acting
in the scope and course of his employment; and he was
following instructions--
THE COURT: Wait a minute. Let's see. He
was an employee of the U.S. That is your first point?
MR. CONNOLLY: Yes, sir. That is right,
Your Honor.
THE COURT: And second that he was--
MR. CONNOLLY: Acting within the scope of his
duties and in the course of his employment; and that in
speaking of the plaintiff, as he did--
THE COURT: Well, now, you say--all right.
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47
MR. CONNOLLY: He was executing or performing
the instructions that were given him by his employer, to
wit, the United States of America, and specifically Central
Intelligence Agency.
Now, I say that if I establish those facts,
one, general employment, and two, that he was carrying out
orders and what he did was pursuant to orders, that I am
entitled to rely on the principles enunciated by the Supreme
Court in Barr vs. Matteo and in Howard vs. Lyons reported
in 360 U.S., both opinions decided the same day, June 29,
1959.
And I rely on a number of cases that have been
decided by all of the Circuit Courts since that time, and
which are set forth in my previous memorandum in support of
my motion.
THE COURT: I would say that if you show that
I do not suppose that there is any serious dispute that when
you spoke you were acting as an employee of the United
States, acting within the scope and duties of his employment
and that when he spoke he was acting under orders, I do not
know whether they tell him the legal conclusion or they tell
him the premise.
Which do you tell him, the legal conclusion
or the premise or both?
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MR. STANFORD: Your Honor, if it can be
shown by the defendant that in all the instances as alleged
by the plaintiff's complaint that he was actually an
employee of the Central Intelligence Agencynd that he was
working within the scope and course of his employment, we
can't argue with the fact that Barr vs. Matteo does provide
a governmental immunity. But that is not the basis of our
position.
THE COURT: No, now you have shifted the
ground once more. You said that he was acting as an
employee of the CIA, and the defendant says an employee of
the United States. Now, there is the first clear issue.
MR. STANFORD: Well, if they want to make an
issue over the fact whether he was an employee of the
Bureau of Public Roads, that he was fulfilling his duties
as a highway research engineer.
THE COURT: No, of course, it is not that.
They say that he is, or they say that he was an employee
of the United States and had been given these duties by the
CIA. They have said also, I think, that he was an
employee of the CIA. I do not know whether they have said
that he was paid, that he was an employee?have you said he
was an employee of the CIA or have you said that--
MR. CONNOLLY: I made that contention, Your
Honor.
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MR. STANFORD: I think that is the contention
that is made, Your Honor, but there is no affidavit or
statement as to that fact. There are statements that he
was an employee.
THE COURT: It is not quite clear to me how
they establish that he--he was certainly an employee of the
United States. There is certainly a statement that he was
acting for the CIA when he did this. The head of the CIA
says that and then says you can't go beyond that in making
inquiry into details.
MR. PRETTYMAN: May I say this, Your Honor?
THE COURT: Yes.
MR. PRETTYMAN: May I say in answer to that
that in Mr. Helms' affidavit of April 1, 1966 he made
several points in connection with that:
"Concurrently with his duties on behalf of
the Bureau of Public Roads the CIA has employed Mr.
Raus from time to time to carry out specific
assignments on behalf of the Agency, but further that
he was so employed on the occasions specified in the
complaint."
He states that in that affidavit.
THE COURT: Well, he states that. He states
that but what they say is that the Government will not let
him be cross-examined on that.
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MR. PRETTYMAN: Well, that is a different
point, Your Honor.
THE COURT: And therefore that they do not
have to accept that statement and that the Court can't
accept it because it is unfair to allow that to be accepted
without any cross-examination.
MR. PRETTYMAN: Well, that is a separate
point, Your Honor. I thought you were raising the question
of whether it had actually been sworn to that he was an
employee.
THE COURT: Well, are you saying that it is
important, is it important to you that he be an employee of
the CIA because I may say that that is not beyond dispute
on this record.
MR. PRETTYMAN: Well, we say that the record
is undisputed on the fact that he was in fact an employee
in their employ.
THE COURT: Well, I know, but they bring up
56 (f), they dispute the fact. It is disputed, and since
you say you will not let them develop their facts on it it
may be a case under 56 (f).
I am not sure, I am not sure either way; I
have an open mind completely on whether you have shown that
he was an employee of the CIA within the meaning of Rule 56
of summary judgment procedure.
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Honor--
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MR. PRETTYMAN: One thing we did say, Your
' THE COURT: I think you have certainly shown
he was an employee of the United States. That is really
not disputed; but they would dispute whether it was within
the course of his duties.
Now, this is a brand-new point. So far as I
know there is no authority anywhere near this subject in the
United States of whether an espionage agent or an
intelligence agent who is on the payroll of the Government
in one capacity who is asked to do some work on the other
can have these matters inquired into or whether at some
point the statement of the head of the agency is sufficient.
So I am not quite clear what you, what the
plaintiff thinks they can accomplish by cross-examination.
MR. STANFORD: Your Honor, there never has
been a statement here except by counsel, and by counsel's
memorandum, that this man is or was an employee of the
Central Intelligence Agency.
There are affidavits of Richard Helms, which
have just been quoted by Mr. Prettyman, which says that he
was employed. And we feel that Barr v. Matteo does not
grant its provision of immunity to anyone who is paid money
at some time to work as an independent contractor, as a
contact, as an informer, as someone who is not under
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supervision and control as an employee of the Central
Intelligence Agency.
And I think that his being an employee is a
very important matter with regard to the application of Barr
vs. Matteo and Howard vs. Lyons.
All of the cases that they have quoted or
cited consider persons about whom there was no dispute that
they were employees, and in most cases highly ranked
employees.
They themselves state that he was quote"a
subordinate employee," and they state "Concurrently with
his duties as a highway research engineer that he was
employed or used."
THE COURT: Well, you say and query whether
he was an independent contractor or informer and so forth
are entitled to the privilege?
MR. STANFORD: Yes, sir.
MR. CONNOLLY: Well, Your Honor, for good or
ill, I do not make the point, and I want Your Honor to
clearly understand this, that I do not make the point that
we are entitled to rely upon Barr vs. Matteo because Mr.
Raus was within the general employ of the United States
and was just a casual employee of CIA.
My point is based on the fact that the record
shows that he was an employee of the CIA on those occasions
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about which plaintiff makes complaint. Now--
MR. STANFORD: If I--
MR. CONNOLLY: Just a minute, sir. Let me
finish.
I would like to direct Your Honor's attention
to the first affidavit of Richard Helms, Paragraph 3:
"On those occasions specified in Paragraphs 5,
6, and 7 of the complaint, the defendant, Jun i Raus,
was in possession of information furnished to him by
the Central Intelligence Agency, and when he spoke
concerning the plaintiff on such occasions he was
acting within the scope and course of his employment
by the Agency on behalf of the United States."
And may I come to the next affidavit?
THE COURT: Yes, but "in the course of his
employment."
MR. CONNOLLY: By the Agency on behalf of
the United States.
Now, let me finish all of them, Your Honor,
so that--
MR. RASKAUSKAS: I think we have all read
them, Your Honor.
MR. CONNOLLY: Do you mind my taking the
time to argue, Mr. Raskauskas?
7 of the second Helms' affidavit:
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"The Central Intelligence Agency has employed
the defendant from time to time--concurrently with
his duties on behalf of the Bureau of Public Roads--
to carry out specific assignments on behalf of the
Agency. Defendant was so employed on those
occasions specified in Paragraphs 5, 6, and 7 of the
complaint."
And then it goes on to say:
"On those occasions the defendant was
furnished information concerning the plaintiff by
the Central Intelligence Agency and was instructed
to disseminate such information to members of the
Legion so as to protect the integrity of the Agency's
foreign intelligence sources."
Then the conclusion:
"Accordingly, when Jun i Raus spoke concerning
the plaintiff on the occasions about which complaint
is made, he was acting within the scope and course
of his employment by the Agency on behalf of the
United States."
Then I come to Affidavit 3:
"Prior to those occasions specified in
Paragraphs 5, 6, and 7 of the complaint in this
action, the defendant, in a series of conferences,
was furnished information by the Central Intelligence
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Agency to the effect that Eerik Heine was a
dispatched Soviet intelligence operative, a KGB
Agent. The defendant was instructed to warn members
of Estonian emigre groups that Eerik Heine was a
dispatched Soviet intelligence operative, a KGB
Agent. The purpose for this instruction was to
protect the integrity of the Agency's foreign
intelligence sources, existing within or developed
through such groups, in accordance with the Agency's
statutory responsibility to collect foreign
intelligence and the statutory responsibility of the
Director of Central Intelligence to protect foreign
intelligence sources and methods. Accordingly,
when Jun i Raus spoke concerning the plaintiff on the
occasions about which complaint is made, he was actin
within the scope and course of his employment with
the Agency on behalf of the United States."
THE COURT: Well, you say that you are not
relying on the fact that he was an employee of the United
States and was casually asked to do something for CIA?
MRL, CONNOLLY: No, Your Honor.
THE COURT: That it was concurrent employment
MR. CONNOLLY: Yes, sir.
THE COURT: And that this was part of the
concurrent employment?
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MR. CONNOLLY: Yes, Your Honor.
THE COURT: Now, ordinarily if this were not-
MR. CONNOLLY: On specific assignment.
THE COURT: On specific assignment.
MR. CONNOLLY: And he was acting in this case
under specific direction.
THE COURT: Now, if this were not a case in
which the privilege has been asserted by the Agency, the
privilege of secrecy asserted by the Agency they would be
entitled to question whether he was indeed an employee of
the Agency or was acting as an independent contractor on
special assignment, you make the point. I do not know
whether that point is good or not, but assuming the point is
good, an independent contractor would not be entitled to the
benefit of the privilege, they would ordinarily be entitled
to go ahead with cross-examination by deposition both of
Raus and Helms, I guess to check on the different points
that are to be considered by a Court in determining whether
a man is an independent contractor or an employee. I think
that is the issue.
Now, one of the elements is, of course,
payment, and you want to get in that he was paid directly
or indirectly by the Agency without saying how.
I am not at all clear that I can accept that
evidence that he was paid by the Agency directly or
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indirectly as tending to prove that he was an employee
rather than an independent contractor.
MR. CONNOLLY: There are a number of things
about that, Your Honor.
THE COURT: Without having, without getting
more specific information. It really is the method of
payment, and I have forgotten, and I started with this more
than forty years ago that I argued my first case whether a
man was an independent contractor or an agent or an
employee, an agent or employee, and I think the restatement
of the law of Torts and agency and so forth both have set
up certain standards, and one of them, I believe, is the
method of payment.
MR. CONNOLLY: No, it is not, Your Honor.
have to disagree. It used to be that considerable emphasis
was placed on who paid the man.
The Restatement today, and the reason I am
expatiating on this was that I think these gentlemen will
remember just last week the United States Court of Appeals
for the District of Columbia Circuit decided a rather
definitive case on this question, decided under Maryland
law.
I do not think Maryland law should apply
since we are in this federal area; but they mention one of
the criteria being who paid him, but they say that this is
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no longer of any significance, that the question is, and the
only question is really involved is whose work is being done
and who has the authority tQ control the details in
connection with the performance of the work.
THE COURT: The details of the work are--
MR. CONNOLLY: Yes, and so these other
indicia that at one time existed are really meaningless.
THE COURT: Well, you say then you do not
care about the payment.
MR. CONNOLLY: That is right, Your Honor.
THE COURT: You are willing to throw it out
the window and we do not have to worry about it.
MR. CONNOLLY: Well, I think there is
evidence that he was paid directly or indirectly by the
Agency, and I think that is enough. I do not mean to throw
that out too with the wash; but it is there.
THE COURT: Well, you say if I throw it out
it is not withdrawn because the important thing is the right
to control the details of the work.
MR. CONNOLLY: And whose work is being
served, whose duty--
THE COURT: Wait a minute. I think we are
going to have to have this written up because this is
developing entirely differently from the way the briefs are
up to this time, and we are getting various points which
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are refined down and the issues narrowed.
MR. CONNOLLY: That is what I tried to say,
Your Honor, when I started to say what I said before and
Mr. Raskauskas accused me of arguing his case, but I think
I understood fairly accurately to begin with that they
really do not dispute the application of Barr vs. Matteo.
They just say that we have not put in
sufficient evidence of a reliable nature in the record to
support the contentions we make.
THE COURT: Well, that is what I thought.
MR. RASKAUSKAS: I do not want to interrupt
Mr. Connolly but I would like to offer this comment. We
have never conceded that the CIA has the statutory authority
THE COURT: Oh, I understand that, that you
are making the point that this is beyond the statutory
authority.
MR. RASKAUSKAS: Yes, sir.
THE COURT:
that point.
--of the CIA. I understand
MR. RASKAUSKAS: And if that is correct Barr
vs. Matteo cannot apply.
MR. CONNOLLY: I beg to disagree.
THE COURT: All right.
MR. CONNOLLY: But if it were a minor
employee, he does not have to worry about the statutory
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authority. That is the point.
THE COURT: That point is made in Mr.
Connolly's last memorandum. I think it is his last
memorandum, which has as yet not been answered.
Now, let's take a break and a recess from the
formal record. We can't run much longer on the formal
record. We can come back to that. Let's discuss how we
are going to set this thing up most clearly.
(Discussion off the record.)
THE COURT: After a discussion off the record
in which the respective parties refined their points to some
extent the Court concluded that the following schedule
should be established:
One, on or before May 23rd defendant will file
a memorandum brief on the scope of the permissive activities
in the United States of the CIA, the permissive activities
of the CIA in the United States. This is an action in the
United States, isn't it?
MR. CONNOLLY: Your Honor, I am not going to
undertake the burden of outlining all the areas in the
United States in which the CIA--
THE COURT: So far as they apply in this
case?
MR. CONNOLLY: That is right.
That is right, just to defend this action.
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THE COURT: That is right, so far as they
apply to this case.
MR. PRETTYMAN: Can it also be made clear
that we are not restricted to that point in the event that
other--
THE COURT: Oh, you can write or to further
elaborate on any additional points upon which defendants
rely which are not stated in the supplemental memorandum
of the defendant in support of its motion for summary
judgment filed April 28, 1966.
That is, I will assume that the points, that
I will not have to go wandering back in your other brief.
This brief which is now to be filed plus the April 28th
brief will be what I will look to to see the points you are
relying on, and I will go back to the others for citations
of cases.
Second, on or before June 23rd plaintiff will
file a memorandum brief stating its position on all of the
issues raised by the defendant and any additional issue
which it wishes to raise such as the 56 (f) and things like
that.
MR. CONNOLLY: What was that date, Your Hono
THE COURT: June 23rd.
And then on or before July 23rd defendant
will reply to plaintiff's memorandum.
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Well, if it is a Saturday, the 22nd of July
On or before July 22nd, defendant will reply
to plaintiff's memorandum and will state whether defendant
wishes an oral argument on the issues.
Within one week thereafter, that is, on or
before July 29th plaintiff will state whether he wishes an
oral argument, and if oral argument is requested by either
side it will be set on a date in the last week in August.
MR. STANFORD: Your Honor, there is one other
thing of a minor nature. It is not minor entirely, but at
least a much smaller consideration, and that is with regard
to Mr. LaVenia's deposition which was taken on May 3rd, we
intend to make a motion with regard to that to compel the
answers to the questions which were objected to and which
were not answered.
We would ask that we file our motion
concurrently with our memorandum, and that that be extended
and no time limit established, as there would be under the
rules.
MR. CONNOLLY: Your Honor, I do not want to
engage in a lot of colloquy or a lot of argument; but this
deposition was a waste of time, and a motion to compel
answers is again a waste of time, and is nothing more than
to keep this thing stirred up, and I imagine it is probably
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for the purpose of press coverage.
Mr. LaVenia has absolutely nothing to offer on
the question of employment, as Your Honor will see from
reading even a cursory study of the deposition.
Now, they want to find out what he found in
his excursions around the countryside investigating the
background of Eerik Heine. I took the position in his
deposition, and properly so, that that is work product. In
any event it is not material until after we get this motion
for summary judgment ruled on.
MR. RASKAUSKAS: You took the position he is
one of the lawyers in the case on the other side. That is
what you are talking about?
MR. CONNOLLY: My position was stated then,
Mr. Raskauskas and it is in the record.
THE COURT: Well, you make your motion at the
time, and Mr. Connolly can answer it along with his
memorandum, and the Court will decide whether it should be
ruled on before or contemporaneously or after the ruling on
the motion for summary judgment.
Thereupon, the hearing concluded at 5:20
o clock p.m.
Certified to be a true and correct transcript
of the proceedings in the above case.
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EERIK HEINE
vs.
JURI RAUS
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil No. 15952
TRANSCRIPT OF PROCEEDINGS
April 28, 1966
FRANCIS T. OWENS
Official Reporter
514 Post Office Building
BALTIMORE 2, MARYLAND
SAratoga 7-7126
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Witness
Juni Raus
INDEX
Direct Cross
91 85
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
EERIK HEINE
vs.
JURI RAUS
Civil No, 15952
2
Baltimore, Maryland
Thursday, April 26, 1966
The above-entitled matter came on for hearing
before His Honor, Roszel C. Thomsen, Chief Judge, at ten
o'clock a.m.
APPEARANCES
For the Plaintiff:
MR. ERNEST C. RASLAUSLAS
MR. ROBERT J. STANFORD
For the Defendant:
MR. PAUL R. CONNOLLY
AR. E. BARRETT PRETTYMAN, JR.
Also present representing the United States
Government, Mr. Thomas J. Kenney, United States Attorney;
Mr. Levin T. Maroney, Attorney, Department of Justice; Mr.
Lawrence R. Houston, General Counsel, Central Intelligence
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PROCEEDINGS
CIO 6.1,
MR, KENNEY: If Your Honor please, we have one
new counsel who appears today, and I think perhaps it might
be in order for me to introduce him to the Court. That is
Mr. Houston, General Counsel for the CIA.
THE COURT: What is his full name or does the
leporter have his name?
MR. HOUSTON: Lawrence R. Houston.
MR. STANFORD: Your Honor, I just would like
at this time to state that the plaintiff in this case, Eerik
Heine, who was flown down from Canada for the purpose of this
deposition--
THE COURT: I am happy to have him here,
suppose the defendant is here also.
MR. CONNOLLY: Yes, sir.
THE COURT: Because of the question of taking
his deposition.
MR. STANFORD: And one other thing, Your Honor,
we want to ask whether Mr. Houston was going to enter his
appearance with the other gentlemen.
THE COURT: Well, no, he is here for the
Government, as I understood it. As I understand it, the
people who are here on the two sides are Mr. Raskauskas and
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Mr. Stanford for the plaintiff, Mr. Connolly and Mr.
krettyman for the defendant, and on behalf of the Government
we have the United States Attorney, Mr. Thomas J. Kenney and
Mr. Lawrence Houston who has just been introduced to the
Court, and also on behalf oE the Government someone from the
Deportment of Justice.
I. KENNEY: Mr. Maroney.
THE COURT: Mr. Maroney who was here before
representing, I believe, the Department of Justice.
Now, since there is such great public interest
in this case, which the Court has noted by reason of reading
newspapers and kind friends mailing articles, newspapers to
the Court I think it is appropriate to say two things:
in the first place, I chink there have been no
conferences of any sort between the Court and counsel since
the last hearing with one exception, and that is that the
counsel for the plaintiff called the Court on Saturday and
said that they had been invited by some television station
to participate in a television prograll, and asked the Court
whether the Court felt it was proper for them to do so.
The Court, of course, expects all counsel in
every case here to comply with the canons of professional
ethics of the American Bar Association; and the question of
whether
/ such an appearance would, have violated that canon is perhaps
not one hundred per cent clear; but the Court feels that
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counsel for the plaintiff were acting with great propriety
in calling the Court first, and they acquiesced in the
suggestion of the Court, that\since we have a jury trial
that it would be better that they should not do so.
Since the last hearing here we have had filed
a number of papers, perhaps the most important of which are
a third affidavit by Richard Helms, the Deputy Director of
Central Intelligence supplementing the two affidavits, or
perhaps more accurately supplementing the second affidavit
which he filed.
The reason for distinguishing between the two
affidavits is that the first affidavit was filed by the
counsel for the defendant without any official appearance
on behalf of the United States or any representation to the
Court by the United States that the affidavit was offered on
behalf of the United States as distinguished from being
offered on behalf of the defendant.
In addition to that affidavit filed on
April 25th there was filed on the same day an amended
answer, which apparently was also served on counsel for the
plaintiff on that date. That was on the 25th of April, and
the Court has received and read the supplemental memorandum
of counsel for the plaintiff of Points and Authorities in
opposition to the defendant's motion for summary judgment,
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which was filed on April 27, 1966. That is yesterday.
Now, so that the present proceedings may be
made more clear not only to the press but so that the Court
understands the various matters which have been heretofore
brought to the attention of the Court, I think it is
helpful for us to review what the Court understands to be
the controlling law in this case.
The complaint is on ordinary complaint for
slander, and an answer was filed to it which set up various
defenses but did not. claim absolute privilege. The
original complaint was filed in November 1964; the original
answer was filed in January of 1965.
Thereafter the deposicion of the plaintiff
was taken by counsel for the defendant after some negotiations,
believe, entirely between counsel, but which included the
filing in court of certain affidavits which have been
mentioned by counsel for the plaintiff and will probably be
mentioned again.
On November 25, 1965 a very elaborate set of
interrogatories, some for 424 in number wicb some of them
having subdivisions of a considerable number so that they
amounted to a great many questions were propounded by
counsel for the plaintiff.
The defendant moved to strike the interrog-
atories for reasons which have never been argued to the
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Court, so that those questions are just hanging at the
moment, but along with the objections to the iaterrogatories
the defendant filed a motion for summary judgment and
attached to it this first affidavit of the Depucy Director
of Central Intelligence, and that was when the case first
came to the attention of the Court.
Now, the Court felt that the Government should
participate for the reasons which are set forth in two
opinions of the Supreme Court. The first is United States
vs, Reynolds, 345 U.S. 1, which was a suit rising out of
an airplane crash in which the Government was sued by
either- -I know by the beneficiaries of some of the people
who were killed in the crash and perhaps by some people who
were hurt.
At any rate, the Government having been sued
on the Tort Claims Act made a claim of privilege against
the efforts of the plaintiff to discover a report which
showed why the aircraft might have fallen. It appears
that the aircraft was being tested. It was a new type of
plane, and the widows of the civilian observers had brought
suit against the United States end they had sought to
obtain the production of the Air Force's official accident
investigation report and the statements of the surviving
crew members taken in connection with the official
investigation.
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They were eventually allowed to have the
testimony of the crew members taken in connection with the
official investigation. They were eventually ellowed to
have the testimony of the crew members but they were denied
the official reports.
"The Government moved to quash the motion,
claiming that these matters were privileged against
disclosure pursuant to Air Force regulations. The
District Judge sustained plaintiff's motion, holding
that good cause for production had been shown. The
claim of privilege was rejected," because of the
Judge's construction of the Tort Claims Act.
"Shortly after that decision the District
Court received a letter from the Secretary of the Air
Force, stating that 'It has been determined that it
would not be in the public interest to furnish this
report.' The Court allowed a rehearing on its
earlier order, and at the rehearing the Secretary of
the Air Force filed a formal claim of privilege.
This document repeated the prior claim based
generally on RS Section 161, and then stated that
the Government further objected to production of the
documents 'for the reason that the aircraft in
question, together with the personnel on board, were
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engaged in a highly secret mission of the Air Force.'
An affidavit of the Judge Advocate General, United
States Air Force, was also filed with the Court,
which asserted that the demanded material would not
be furnished 'without seriously hampering national
security, flying safety and the development of
highly technical and secret military equipment.'
The same affidavit offered to produce the three
surviving crew members, without cost, for examination
by the plaintiffs."
Now, it seems that when the case got to the
Supreme Court they said:
"We think it should be clear that the term
not privileged' as used in Rule 34, of the Federal
Rules of Civil Procedure, refers to 'privileges' as
that term is understood in the law of evidence.
When the Secretary of the Air Force lodged his formal
claim of privilege he attempted therein to invoke
the privilege against revealing military secrets, a
privilege which is well-established in the law of
evidence. The existence of the privilege is
conceded by the Court below, and indeed, by the most
outspoken critics of governmental claims to
privilege.
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"Judicial experience with the privilege
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which protects military and state secrets has been
limited in this country. English experience has
been more extensive, but still relatively slight
compared with other evidentiary privileges.
Nevertheless the principles which control the
application of the privilege emerge quite clearly
from the available precedents. The privilege
belongs to the Government and must be asserted by lc;
it can neither be claimed nor waived by a private
party. It is not to be lightly invoked. There
must be a formal claim of privilege lodged by the
head of the department which has control over the
matter after actual personal consideration by that
officer. The Court itself must determine whether
the circumstances are appropriate for the claim of
privilege, and yet do so without forcing a
disclosure of the very thing the privilege is
designed to protect.
The latter requirement is
the only one which presents real difficulty. As to
it, we find it helpful to draw upon judicial
experience in dealing with an analogous privilege,
the privilege against self-incrimination.
"The privilege against self-incrimination
presented tae Courts wita a similar sort of problem.
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Too much judicial inquiry into the claim of
privilege would force disclosure of the thing the
privilege was meant to protect, while a complete
abandonment of judicial control would lead to
intolerable abuses. Indeed, in the earlier stages
of judicial experience with the problem, both
extremes were advocated, some saying that the bare
assertion by the witness muct be taken as conclusive,
and others saying that the witness should be required
to reveal the matter behind his claim of privilege to
the Judge for verification. Neither extreme
prevailed, and a sound formula of compromise was
developed. This formula received authoritative
expression in this country as early as the Burr trial.
There are differences in phraseology, but in
substance it is agreed that the Court must be
satisfied from all the evidence and circumstances,
and from the implications of the question, in the
setting in waich it is asked, that a responsive
answer to tae question or an explanation of why it
cannot be answered might be dangerous because
injurious disclosure would result.' If the Court is
so satisfied, the claim of the privilege will be
accepted without requiring further disclosure."
So much for the discussion of the claim of
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privilege against self-incrimination.
Then the Court continued:
'Regardless of how it f.s articulated, some like
formula of compromise must be applied here. Judicial
control over the evidence in a case cannot be
abdicated to the caprice of executive officers. Yet
we will not go so far as to say that the Court may
automatically require a complete disclosure to the
Judge before the claim of privilege will be accepted
in any case. It may be possible to satisfy the
Court, from all the circumstances of the case, that
there is a reasonable danger that compulsion of the
evidence will expose military matters which, in the
interest of national security, should not be divulged.
When this is the case, the occasion for the privilege
is appropriate, and the Court should not jeopardize
the security which the privilege is meant to protect
by insisting upon an examination of the evidence,
even by the Judge alone in chambers.''
Now, they continued:
'In the instant case we cannot escape
judicial notice that this is a time of vigorous
preparation for national defense,' and then they
discuss the facts in that case, and then went on:
"Even with this information before him the
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trial judge was in no position to decide that the
report was privileged until there had been a formal
claim of privilege. Thus it was entirely proper to
rule initially that petitioner had shown probable
cause for discovery of the documents. Thereafter,
when the formal claim of priNdlege was filed by the
Secretary of the Air Force, on circumstances
indicating a reasonable possibility that military
secrets were involved, there was certainly a
sufficient showing of privilege to cut off further
demand for the documents on the showing of necessity
for its compulsion that had then been made.
"In each case, the showing of necessity which
is made will determine how far the Court should
probe in satisfying itself that the occasion for
invoking the privilege is appropriate. Where there
is a strong showing of necessity, the claim of
privilege should not be lightly accepted, but even
the most compelling necessity cannot overcome the
claim of privilege if the Court is ultimately
satisfied that military secrets are at stake. A
fortiori, where necessity is dubious, a formal
claim of privilege, made under the circumstances of
chis case, will have to prevail."
Now, I cake it that those are the principles
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which the Court must apply in this case. They have been
elaborated to some extent in later cases in the Court of
Appeals and in the Supreme Court I believe there is no
case directly in point in the Fourth Circuit which is
binding upon me; so the only binding authority on me are
these decisions of the Supreme Court, the Reynolds case,
which J. just read, and any principles which may be in the
very difficult Barr vs. Matteo case, decided in 1959, a few
years after the Reynolds case, and in the Howard vs. Lyons
case,
both of which were decided the same day, but of them
reported in 360 U.S., which discuss various phases of
governmental privilege, but do not discuss the military
privilege point which we have here.
Now,
the only Fourth Circuic cases which the
Court believes are directly in point
would guide the Court in when it is
0 .
summary judgment and when it is not
summary judgment. There are cases
are decisions which
appropriate to grant
appropriate to grant
which come out one way
and cases which come out the other way, and I think those
principles are now relatively clear in this Circuit.
With this in mind, particularly the principles
of the Reynolds case, when the first affidavit was presented
in court in support? of the motion for summary judgment the
Court ruled that there was noc at the time certainly before
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the Court a sufficient Oasis for granting a summary
judgment in favor of the defendant, particularly because
the matter was not being presented by the Government.
believe Mr. Kenney came up briefly that
morning; if not he certainly appeared at the second hearing
along with Mr. Maroney representing the Government, and
this second affidavit of Mr. Helms was presented formally
by the attorneys for the Government, the Department of
Justice, who ordinarily handle those matters in his court,
and indicated that the Government was making the claim.
Now, after reading that affidavit, and with
the principles in mind stated in the Reynolds case, the
Court was not satisfied that a summary judgment might
properly be granted but that there should be some further
exploration of the facts as indicated by the Reynolds case
as far as the interest of national security would permit.
Therefore, the Court adjourned the hearing
with the suggestion that two things might be done: That
the Government might clarify its affidavit by clearing up
certain things which were perhaps implied in the second
affidavit but were not explicitly stated; and secondly,
that the deposition of the defendant might be taken; and
third, that the plaintiffs might present any additional
material in the way of evidence or attempt to secure
evidence which they might wish to have presented to the
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Court in opposition to the motion for summary judgment,
and that the Government also might present any additional
matters which it felt should be presented to the Court.
The Court also said that if the deposition of
Mr. Raus was to be taken that I thought it useless to take
it before a notary public or other customary officials
because there would be bound to be some objections, perhaps
a good many objections to the questions which were asked
and that any rulings which such notary would not be able to
answer and would have to be before the Court, and they might
as well be brought before the Court in the first instance.
Therefore, the Court suggested that the
deposition be taken before the Court, and that idea was
accepted by counsel for both parties, and the question then
where it should best be taken has been in the air, and
think the parties have finally agreed that this was the
proper place in which the deposition should be taken.
So we are here now to permit the plaintiff to
take the deposition of the defendant as far as they may be
allowed to take it against any objections which the Court
may feel the Court should sustain under the principles
which have been enunciated, and also to permit the Court to
consider any other matters which may be before the Court.
These additional papers have now been filed,
and the issue is certainly crisper and more specific than
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it has heretofore been, and I will be happy to hear now
from counsel for each side as to the matters which they
believe are before the Court for decision either today or
111 after reflection or after further argument, which might be
held today or at some other time, and some suggestion by
counsel as to the order in which these various matters
should be taken up.
I suppose we should hear from the plaintiff
first.
MR. KENNEY: If Your Honor please, before
you go to that, there is just one more preliminary matter.
THE COURT: Yes.
MR. KENNEY: The Government has prepared,
and I think this might be the appropriate time the claim
of privilege under the statute on behalf of the CIA.
THE COURT: You mean the more formal claim?
MR. KENNEY: Yes, sir.
THE COURT: All right.
Have you already given that to counsel for
the plaintiff?
MR. MARONEY: No, Your Honor.
MR. CONNOLLY: Your Honor, in view of some
of the recent memorandums that have been filed by the
plaintiff we thought it would be appropriate also to
prepare a supplemental memorandum which in its terms says
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that the defendant desires to restate its legal position
on the pending motioA in the simplest and most concise
terms, and I hope I have reduced it simply enough, and I
would like to file that, Your Honor.
THE COURT: Well, I gather plaintiff before
we go any furiller, plaintiff would want to look at these
papers, the Court will want to look at them, everybody else
would like to smoke a cigarette, and the Court will
therefore take a ten minute recess.
MR. CONNOLLY: Thank you.
(Thereupon, there was a short recess taken,
after which the following occurred:)
THE COURT: I gather the claim of privilege
has now been marked "filed," and the supplemental
memorandum has been filed, and I believe all the memoranda
have been filed in the case, and not have been sent to
me.
The practice varies. Usually the Washington
area lawyers send them to the Clerk, and the Baltimore area
lawyers send them to the Judge. It makes no difference.
I think the best thing to do is to have it continue
uniform so we will not have some in and some out.
?
All right. Do you have some suggestion as
to how we should proceed?
MR. RASEAUSLAS: Yes, Your Honor. In view
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of the claim of privilege filed by the Central Intelligence
Agency the plaintiff suggests that we commence taking the
deposition of the defendant and see how far we ?an get on
the matters we feel are relevant to this issue of official
immunity, and I think until we make this attempt that it
would not be appropriate to suggest any further procedure.
THE COURT: All right. What do you have in
mind after that?
MR. RASKAUSKAS: Well, after that I have in
mind, Your Honor, that thc questions we propose to ask now
are relevant to the status of Mr. Raus.
THE COURT: To his claim of privilege?
MR. RASKAUSKAS: Yes, sir.
THE COURT: To his status, which is part of
MR. RASKAUSKAS: Yes.
THE COURT: The defense of privilege.
MR. RASKAUSKAS: Yes, whether he was an
informer, paid or unpaid, casual contact, and so forth.
THE COURT: Yes,
MR. RASKAUSLAS: Now, if he declines to
answer any of these questions I think then ic would be
appropriate for the Court to consider our pending motion
to strike the order entered permitting an amended answer
in view of these new developments because we would then
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claim that the defendant has been permitted to amend his
answer to make allegations which unfortunately because of
executive privilege he could not prove.
So it would be useless to permit an amendment
of the answer if he cannot prove the defense.
THE COURT: I will be glad to hear from you.
MR. CONNOLLY: Well, Your Honor, speaking for
Mr. Raus, we have no objection to commencing taking his
deposition. The reason that we asked for a protective
order earlier was because Mr. Raus was under the stricture
of a secrecy agreement and the prohibition of the espionage
laws against answering questions involving the nature of his
work.
The second affidavit instructed him not to
answer any questions, and we asked for a protective order.
Now, the United States has intervened, and we are prepared
to go ahead with Mr. Raus' deposition under the aegis of the
Court and in view of the privilege which has been asserted.
think the thing to do is to delay all legal
arguments pending the conclusion of this because there is
no use crossing bridges until we come to that.
THE COURT: Does the Government wish to say
anything?
MR. MARONEY: The Government is satisfied
with that procedure, Your Honor. We would only suggest that
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when the witness takes the stand that he be given an
instruction following each question that he hesitate to
permit us an opportunity to make an objection.
THE COURT: I think that is all right.
MR. CONNOLLY: Mr. Raus, will you come
foreward, please.
Thereupon
JURI RAUS
was called as a witness on deposition and, having been
first duly sworn, was examined and testified as follows:
commente--
stand here.
MR. CONNOLLY: Your Honor, before we
THE CLERK: Mr. Raus, would you take the
THE COURT: Yes.
MR. CONNOLLY: Presumably the issues raised
by the pleadings would go much farther than just the issue
of his employment. Perhaps it would be wise since I may
have some objection on rather pedestrian legal grounds to
some questions to find out what is the scope of inquiry
here.
As I take it, Mr. Raskauskas' statement, he
is going to inquire about his statement, his employment
status; is that correct? Or are you going beyond that?
THE COURT: Well, I gather the line that they
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want to inquire about seems more or less indicated by the
brief which they filed yesterday. Is that correct?
UR.
RASKAUSKAS: Well, we are interested in
having the widest possible discovery, but today we propose
to ask questions concerning the scope of his employment
and relationship with the Central Intelligence Agency.
THE COURT: That is the first bridge. If
you can't get over that bridge you never get to the other
one
MR. CONNOLLY: Yes.
THE COURT: If you get over that bridge then
we face the second one.
MR. RASKAUSKAS: I do not feel it necessary
for us to impose upon the Court as far as general questions
respecting the other defenses are concerned.
THE COURT: All right.
MR. CONNOLLY: The reason I bring that up is
you know perhaps, under a claim for punitive damages, a
man's financial resources would be in point.
THE COURT: We are not going into that.
MR. RASKAUSKAS: No,
411 THE COURT: I do not think we have gotten to
chat yet.
MR. CONNOLLY: All right.
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THE COURT: I do not know his financial--I
think that his employment, whom he was working for and what,
if any, his connection with the CIA was axe matters--which
? I gather they want to go into.
Let's take the questions as they come
because the questions might bear on both subjects. I do
not want to make any general rulings at this time.
MR. CONNOLLY: No.
THE COURT: Maybe after I have made such
specific rulings we may be able to be more general after we
see what the points are.
MR. RLSfAUSU,S: May I proceed, Your Honor?
THE COURT: Yes.
DIRECT EXAMINATION
BY MR. RASKAUSEAS:
Will you state your name?
A Jun i Raus.
Your address?
A 6503 Osborne Road, Hyattsville, Maryland.
Your age?
A Thirty-nine.
Your birthplace?
A Dactu, Estonia.
When did you emigrate to the United States?
A In August 1949.
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States?
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Are you a citizen of the United States?
A Yes.
When did you become a citizen of the United
A In March 1953.
Was your citizenship speeded up by virtue of
service in the armed service of this country?
A Yes.
What branch of the service were you in?
A Army.
What branch of the Army?
A Transportation Corps,
And what is the date of your Army service?
September 1950 until September 1952.
What rank did you attain in the service?
A Corporal.
And after your discharge from active duty did
you become a member of a reserve component in the Armed
Forces?
A After graduating from a college.
When did you graduate from college?
A In 1956.
Q And when did you become a member of a
reserve unit?
A In December 1956.
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And what reserve unit was that?
A Three hundred-and-first Engineering Combat
Battalion.
And what rank did you hold after you became
a member of that unit?
A Second Lieutenant.
Are you still a member of a reserve unit?
MR, CONNOLUY: Just a minute.
THE COURT: What?
MR, CONNOLLY: Is there a problem, Mr. Raus?
THE WITNEES: I was a member of the service
unit until November last year, until the unit was disbanded.
So now I belong to the control group.
BY MR, RASKAUSEAS:
At the time you left this active group what
was your rank?
A Captain.
At the time you went to this inactive group
what was your rank?
A Captain.
Have you been since promoted?
A No.
When were you promoted to Captain?
A December 1963.
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And when were you promoted to First
Lieutenant?
A I believe it was in 1960--it was in 1957.
What month?
A I cannot recall.
And what inactive unit are you a member of at
this time?
A I am carried on the list of the Army Reserve
Control group, active reserve.
Did you go to meetings regularly?
A No.
Uow much income did you receive from your.
,reserve duty in 1965?
MR. CONNOLLY: Objection. It is immaterial.
THE COURT: What is the materiality?
MR. RASKAUSRAS: The materiality is to show
his income from any sources. The defendant has already
made an affidavit, a gratuitous affidavit respecting his
income, and we wanted--
THE COURT: The Government is not objecting?
MR. MARONEY: We do not object to this
specific question, Ypur Honor, but we would object to
further, a further line of inquiry into his income.
THE COURT: I understand that the fact that
the Court may overrule the objection does not mean that you
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should not object to another one, and in order to save
time, can it be understood that a failure to object to a
particular question shall not be considered as a waiver of,
lacer questions along the same lines so that we won't have
to apply the strict rules that are applied in incrimination
macters of when you have answered one you have opened it up
to answer others?
MR. STANFORD: Unless that is a leading
question, it is a type of question Which could be corrected
at the time.
THE COURT: Oh, yes, I do not want to have
an objection to each question in order to preserve their
right to object later on down the line, I think we would
just be wasting a lot of time.
MR, RAELAUSKAS: Very good, Your Honor.
MR. CONNOLLY: Your Honor, may I state this
one proposition, which I need not repeat. There is no
sworn statement of Mr. Raus on file in support of a motion
for summary judgment. Therefore, questions going to his
credibility 1 contend are immaterial.
The affidavit which was filed, which Mr,
Raskauskas makes reference to, was an affidavic of January
1955 in which he sought a protective order--January 1965.
THE COURT: In which he sought--
MR. CONNOLLY: Sought a protective order, in
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which he said what his income was at that time.
Now, I think that is relevant only as to that
issue, it is not relevant on the issues that we have here.
THE COURT: Well, of course, a deposition for
discovery, counsel for the party taking the deposition is
?
not limited to evidence which is necessarily relevant. They
may ask questions which go to evidence, which may lead to
relevant evidence, and since the issue is a possible issue
in the case, and since it is desirable as far as possible
to have one deposition and not to have to come back again,
it is quite probable that if they do not get over the first
bridge this is going to be immaterial.
If it affects credibility in getting over the
first bridge I would be disposed to allow it in. I will
therefore overrule the objection. You may continue
objections to a similar question and twill rule on each
one as it arises.
Objection overruled. You may answer it.
The question is how much you made, how much
income he received from his services in the military
reserve of the United States in 1965, as far as he recalls.
Is that it?
MR. CONNOLLY: Your Honor, that is not the
question.
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question?
Do you want
it?
THE COURT:
Wasn't that it?
Then I misunderstood him.
to repeat the question?
29
Wasn't that the
What was the question?
Why don't you repeat
(The last question was read by the Reporter.)
MR. CONNOLLY:
THE COURT:
THE WITNESS:
Can you wait just a second?
All right.
Approximately one thousand
dollars.
BY MR. RASKAUSKAS:
Now, all of this money in the approximate
amount of
as
one thousand dollars you were paid for your duty
a member of this reserve component; is that correct?
A Yes, partly through the unit I belonged to,
also partly by an intelligence school I
summer of '65.
Where did you attend this
MR. MARONEY:
attended this intelligence
?
attended in the
and
intelligence school?
Objection to where, where he
school.
THE COURT: I do not see where makes any
difference. The Government is objecting.
MR. RASKAUSKAS: Well, I would like to say
this, Your Honor, that the defendant addecl this tc his
answer. I did not elicit this information, and if Your
?
Honor will bear me out7 he opened the door on this subject,
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and I am interested now in inquiring into it.
THE COURT: If the Government is objecting,
the Government does not have to tell where it conducts--if
the Government feels it should not tell where intelligence
schools are conducted, you are inquiring about whether he
got all of his thousand dollars through his unit.
He has answered it frankly and fully, that it
was partly through the unit and partly through attendance
at an intelligence school.
MR. RASKAUSEAS: And that leaves a question,
Your Honor, whether this intelligence school was related to
the reserve unit or whether it was related to the CIA.
THE COURT: ' lE dhe Government objects, you
asked where i- was located. I will su$tain the objection.
30
It does not seem to me to be material
it seems to me to
come within the privilege. I have to weigh each one0
k y?????????
The weight of this side comes down on the
Government's side.
BY MR. RASKAUSKAS:
Now, were you paid for your attendance at this
intelligence school?
MR. MARONEY: He has already answered that,
Your Honor.
THE COURT: He said part of it.
MR. STANFORD: Your Honor, I think that at
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this point I think this procedure has something which is
inherently defective. Mr.,Raus afcer hearing the question,
looks to his counsel in order to get an assent as to whether
he is to answer.
At times that assent may be construed as an
answer itself, and I would ask chat the counsel therefore
give no, make no motion, or make no motion but to state
merely that they object to a question, and i make no
accusation here that they have. But I merel* say that it
is confusing to the witndss himself,
THE COURT: Counsel know that this Court
does not believe in signaling to a wicness.
MR. STANFORD: I do not make any accusation.
THE COURT: Beyond the question of whether
he may answer or not, and the witness is to understand that
no signaling is to be anything more than he may answer or
whether he should hold up answering.
MR. CONNOLLY: Your Honor, in this case I
may say for the defendant that this is an unusual situation
because he is prohibited from answering at all.
THE COURT: I understand.
MR. CONNOLLY: And the signaling which he is
getting is in effect one, as to whether he is permitted to
say anything--
THE COURT: Well, I think chat is exactly
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3
MR. CONNOLLY: And there is a difference.
THE COURT: He signed an agreement that he
would not disclose anything beyond what he is permitted to
disclose, and he might violate the law and be subject to
penalties if he did.
MR. MARONEY: I would only like to state,
Your Honor, that / think Mr. Houston has been occasionally
nodding his head in order to expedite matters, and if the
Government has no objection to che question that be could
proceed with the answer.
THE COURT: The Court understands that that
is going to expedite the matters, and that is the limit of
what will be done. We are dealing with honorable men on
both sides.
BY MR. RASKAUSKAS:
Was your attendance at this intelligence
school within the framework of your reserve component?
MR. MARONEY: Objeccion, Your Honor,
THE COURT: Well, I want to have some idea.
You need not be too specific, and I am aware that in asking
for information on which to make a ruling I did not require
you to disclose the secret which you may be entitled to
keep.
There is a statement in the affidavit which
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has been filed by Mr. Helms in both of his affidavits that
Mr. Raus--I do not want to misstate it--that the Central
Intelligence Agency has employed him from time to time--
this is in the second one--concurrently with his duties on
behalf of the Bureau of Public Roads to carry out specific
assignments on behalf of the Agency.
The later one, which is the third affidavit,
I think does not add anything except the purpose for which--
oh, it says accordingly when he spoke, the third one says
when he spoke concerning the plaintiff on occasions about
which complaint is made he was acting within the scope and
course of his employment in the Agency on behalf of the
United States.
So the fact that he has been employed by the
Agency at times in the past, or whether he is now so
employed or not, has been made public so that anyone who
is interested in whether he has been an agent of the United
States now knows that he has done the matters which have
been set out in these affidavits.
Your position is this, as I understand your
position to be that it is inconsistent with governmental
intelligence to know whether he is still acting in
intelligence work for the CIA or other agency other than
normal Army work?
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basis for it?
34
Is that the basis of it or is there some other
MR. MARONEY: That is right, Your Honor, any
411 further explanations by him of his connection with
?
intelligence would impinge on security.
THE COURT: I do not see that his present
connection with security or Intelligence, Central Intelligence
or with any other security, any such continuous activity
beyond the time of the alleged slanderous remarks have any
great materiality in the case.
Again it seems to me the weight comes down on
the Government's side. I will be glad to hear from you if
you have any argument to the contrary.
MR. RASKAUSKAS: Your Honor, we contend that
these questions are very relevant. There have been
allegations made which are conclusory and which we claim
usurp the province of this Court and a jury as to whether
or not this man was in fact an employee of the CIA, and in
order to ascertain that fact we want to know what the
sources of income were for the last several years, and it
is reasonable to find out when his relationship, whatever
it was, with the CIA commenced, when it terminated, whether
he was paid or unpaid by them to find out what his status
was before he can squeeze himself in under Barr vs. Matte?
as a government official or employee, and we feel that that
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fact has not been resolved.
THE COURT: I rule that what he did in 1965
---------------
in the way of going to school is not discoverable. I
sustain the objection. Particularly, I am noting that 1965
is later than the last alleged slanderous remark.
MR. RASKAUSKAE: Very well, Your Honor.
BY MR. RASKAUSKAS:
Will you state each and every source of
(income for the calendar year 1963, specifying the amount of
,payment and from whom the disbursement was made.
,MR. MARONEY: Objection, Your Honor.
THE COURT: On what grounds?
MR. MARONEY: On the ground that to require
him to specify each and every source of income would get
into
THECOURT: Well, we are going to get, the
real issue in this case, as I gather, that you are working
on now, is whether he was an employee of the Agency. Now,
you have said that he was an employee of the Agency in the
affidavits.
MR. MARONEY: Yes, sir.
THE COURT: The Government has stated the
scope of his employment with the Agency. I do not know
whether he is an officer or exactly what his employment was.
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They are set out in some general way in the second affidavit,
and only in this conclusory fashion in the third. There
is some specificity in the second.
Now, the question which the Court is going to
have to pass upon under this claim of privilege which he
asserts, which is being asserted by the Government also,
requires my consideration of these factors which I read
out.
Ordinarily whether a man is an employee of,
let's say, an employee of a corporation, one of the factors
in determining it is whether he is paid for his work.
The employer in this case is the United States of America.
Now, I gather there is no dispute that he
was employed by the United States of America in some
capacity and that he was paid a salary, wages, presumably
a salary as either an officer or employee of the United
States.
Now, if he was not paid anything by the CIA
but was on the payroll of some other organization it is--
well, the possibilities are these: He was either entirely
on the payroll of the CIA, in which event the first
affidavit was incorrect; in the second place, he was
entirely on the payroll of the Bureau of Public Roads, in
which event the first affidavit was entirely correct.
It is possible that he received some
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compensation from the Bureau of Public Roads and some
compensation from some other governmental agency, in which
event his statement in his first affidavit was correct as
far as it went, and he was prohibited by secrecy from going
any further, I gather is the position taken.
Now, I do not see that there is any harm, and
I will be glad to hear general argument of why there is any
harm in disclosing whether he was paid anything by anybody
except the Bureau of Public Roads.
I am not saying that it is going to affect
my decision; I am not sure that it can. If he is employed
by the United States I certainly do not have any
preconceived idea that it is not in the best interest of
the United States sometime that a man who is employed by
the one branch of the government may do work for an
intelligence agency without receiving additional pay.
I will hear argument on that if it becomes
necessary; but if it is a question--well, let's see what is
the basis for the objection.
MR. MARONEY: Well, first of all, Your Honor,
we have no objection to his testifying as to employment he
received from the Bureau of Public Roads,
THE COURT: All right.
MR. MARONEY: We do object to the question
Which asks for an itemization of all incomes and sources
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thereof, and we note that the Central Intellig_sws__Lx-t.-
authorizes the Director to withhold from public inspection
or notice the wages paid to employees, and of course, the
identification of employees.
THE COURT: But you have identified him.
Now, I do not care how much he was paid for it, for whatever
he was doing.
But you agree that he may answer?let's take
it step by step. There is no objection to his answering
what, if anything, he received from the Bureau of Public
Roads. Is that right? All right. Answer to that
extent.
Honor?
MR. CONNOLLY: Just a minute, sir.
MR. MARONEY: May we have a moment, Your
THE COURT: Yes.
(Short pause in proceedings.)
THE COURT: Well, the Court understands he
might be paid directly something by the CIA. He might be
paid overtime by Public Roads which didn't really turn up
on its budget but came from the CIA, and the checks
cleared someway. He may have been paid through some
cover organization. If he is paid through a cover
organization I certainly do not want to know the name--I do
not think the cover organization should be disclosed.
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I think if he was paid anything directly or
indirectly by CIA it tends to clarify one element of the
question of whether he was an employee of CIA, whether paid
directly or not or as distinguished from an employee of the
United States generally.
I am not sure that is an important issue, but
I think the more information we can have the easier it is
for the Judge to decide the question.
MR. MARONEY: Unfortunately, Your Honor, I
,think that if we get into the question of pay you get into
the problem of intelligence methods and techniques.
To repeat my previous statement, we do not
object to the question as to his income from the Bureau of
Public Roads. We would object to the broad question as to
the source of all income.
THE COURT: All right. Well, he may answer
then what he made from the Bureau of Public Roads.
MR. CONNOLLY: That is a three year period,
'63, '64, and '65, as I understand it.
MR. RASKAUSEAS: I have not gotten to that
yet.
MR. CONNOLLY: I thought the first question
was three years.
THE COURT: I thought it started with '63.
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MR. RASKAUSKAS: Your Honor rules then that--
THE COURT: He may answer with respect to the
Bureau of Public Roads. Then I will rule on the next
? question.
?
I am allowing him to answer what is not
disputed, to begin with. Then we will come to ruling on
the dispuced items,
MR. RASLAUSLAS: Very well, Your Honor.
BY MR. RASLAUSKAS:
Were you an employee of the Bureau of Public
Roads in 1963 for the entire calendar year?
A Yes.
What was your salary with the Bureau in that
year?
A It was approximately $8/00 a year.
What was your grade at that time wich the
Bureau of Public Roads?
A GS-11.
What was your--
THE COURT: You said his salary. Did you
get paid overtime also?
THE WITNESS: No, Your Honor.
THE COURT: You mean this is not something
that carries overtime?
THE WITNESS: No, Your Honor.
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BY MR. RASKAUSKAS:
And what was your occupation with the Bureau
of Public Roads?
A Highway research engineer.
Now, the $8700 that you received as a GS-11
from the Bureau of Public Roads of the Department of
Commerce, was all of the income for services rendered by
you in your position and occupation?
MR. MARONEY: May we have a moment, Your
Honor?
THE COURT: Yes.
He said he was not paid overtime. I gather
he was not docked if he was out.
MR. RASKAUSKAS: The question I am
propounding, I will withdraw that question and perhaps
restate it more simply.
BY MR. RASKAUSKAS:
In 1963 when you were employed by the Bureau
of Public Roads of the Department of Commerce at an annual
income of approximately $8700 as a GS-11, I ask you if all
of the income you were paid by the Bureau was for the
duties which you rendered 4.n the job which you stated you
held with that Bureau?
THE COURT: Do not answer that until--
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BY MR, RASLAUSEAS:
As a highway research engineer--
THE COURT: Until I have had an opportunity
to rule.
MR. MARONEY: The Government objects to that
question, and instruct him not to answer.
THE COURT: You mean you instruct him not to
answer that?
MR. MARONEY: Yes, sir.
THE COURT: Wq11, if you instruct him not to
answer, tjaat brings us to che basic question, I suppose, of
)Whether the Government, ad particularly the CIA should be
entitled :.c) protect the sources of compensation.
Is the CIA, is the Government taking the
position that this man was an employee--you said he was an
employee in '63 and '64 of the CIA, I take it, because you
say on those occasions, and those occasions included
November of '63 and sometime in '64.
Are you saying, you are saying that he was
your employee, but you are refusing to say whether, or are
you refusing to say whether he was paid directly or
indirectly by the CIA for those services?
Now, if he was paid--I do not much care
whether he was paid directly or indirectly--but why does
it hurt the CIA to say--only this first question. Now, I
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am not going beyond the first question, to have the
43
Government state, if you will not let him state, let the
Government state, whether he was paid directly or indirectly
for some services, for services rendered to the CIA or
whether they were rendered on a purely voluntary basis or
whether they were rendered by arrangement between the CIA
and one or more of the departments.
Did he get anything for his work? That is
all that is being asked, and if you would explain to me
why that will hurt as far as that can consistently be
done without disclosing national secrets I would like to
understand it because it is not clear to me why having said
he was an employee you will not say whether he was serving
in a voluntary capacity or was being paid in some way?
MR. MARONEY: Well, Your Honor, our problem
is that in order to make an explanation to Your Honor's
inquiry would require a disclosure of the methods or some
methods,
THE COURT: Wil, is it any secret whether
the CIA whether all people who are employed by the CIA
appear on its payroll as such? Is that a secret?
MR. MARONEY: Yes, sir.
THE COURT: That is a secret?
MR. MARONEY: Yes, sir.
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THE COURT: And the CIA does not take a
position, does not want to take a position on whether all
people who render services for it and whom it feels
entitled to control are paid people or some volunteer?
MR. MARONEY: That is correct, Your Honor.
THE COURT: All right.
MARONEY: Aid the Director has statutory
authority to withhold.
THE COURT: Well, let me have this code, the
one I read, the section I read. It is Section 403
something.
MR. CONNOLLY: (g). I think there is a
specific one dealing with salaries too, Your Honor.
MR. MARONEY: 5 U.S.C. 947.
THE COURT: 5, 947. Have you 5 over there?
That is the General Executive Departments, isn't it?
MR. MARONEY: No, Your Honor, that is not
the citation.
THE COURT: Well, it is 50 U.S.C.A. 403 (g).
MR. MARONEY: 503 (g).
THE COURT: (g) or (j)?
MR. CONNOLLY: 403 (g).
THE COURT: (g).
MR. CONNOLLY: "In the interests of the
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security of the foreign intelligence activities of
the United States
in order further to implement
the proviso of fection 403 (d) (3) of this title that
the Director of Central Intelligence shall be
responsible for protecting intelligence sources and
methods from unauthorized disclosure, the Agency
shall be exempted from the provisions of Section 654
of Title 5, and the provisions of any other law
which require the publication or disclosure of the
organization, functions, names, official titles,
salaries, or numbers of personnel employed by the
Agency."
THE COURT: Well, that is right, but we are
not asking at this point--the plaintiff at this point is
noc askiag for his salary, an my suggestion does not carry
that you tell his salary.
My suggestion, and I do not say this
specifically says it, why you can't say either yes or no
that he received some compensation directly or indirectly
whether through release from certain duties with the Bureau
of Public Roads or otherwise without specifying for what he
did.
I do not see why the answer to that question
even literally comes within (g). He must not say--I
weuld agree he does not have to say what his salary is,
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against that objection, but I do not see that this prohibits
your disclosing whether you were using volunteers or whether
you are paying, whether you are using some volunteers or
whether you are paying people, and if he was paid in some
way, it seems to me it is material.
do not see that they can, that this Section
403 7V
0-
prevents them going further, but I do not see why
jet would prevent them knowing whether he was acting as a
volunteer or as a paid employee directly or indirectly, and
T am inclined to think they can't go beyond directly or
indirectly.
Are you willing to indicate how far you will
go assuming that no further questions along those lines
will be permitted?
MR. CONNOLLY: Your Honor, can you indulge
us a moment?
THE COURT: Yes, I would like to know how far
you can go with the understanding nothing more will be
permitted, and then I will have to rule after hearing from
the plaintiff whether that is the line the Court feels
should be drawn.
MR. CONNOLLY: Answers sometimes are a
burdensome thing, Your Honor.
THE COURT: Would you like a little more time?
We can take a break again if you want? Do you want a break?
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I mean is there something you want to discuss after a little
longer?
MR. CONNOLLY: If we can just step out in the
hall for just about thirty seconds?
THE COURT: All right. Co ahead, and I will
also step out.
(Thereupon, there was a short recess taken,
after which the following occurred:)
MR. MARONEY: If Your Honor please, Mr.
Houston will make a statement in connection with Your Honor's
inquiry.
THE COURT: All right.
MR. HOUSTON: Yolar Honor, the Government
asserts that the defendant was paid directly or indirectly
for services on behalf of CIA during the times in question.
THE COURT:
how much or through whom?
MR. HOUSTON: Any other questions relating
;.c, that,
And you object to his stating
MR. RASKAUSKAS: Your Honor, at this time I
make a motion that that statement be stricken from the
record. Every statement, each and every allegation made
by the defendant must be tested in the crucible of cross-
examination, and our contention is this that it is indeed
presumptous for the plaintiff or his counsel co state what
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is a secret and what is not a secret, and that is within
the purview of the executive body.
THE COURT: Who?
MR. RASYAUSLAS: The statements made by the
executive directly or through its representative must be
susceptible of cross-examination, and they may either say
everything or nothing, and we object to such self-serving
declarations.
THE COURT: I understand that. Now, assuming
that were included in the affidavic, that we were not having
it stated by Mr. Houston, but assuming it were included in
the affidavit of Mr.--the latest affidavit I believe, the
affidavit of Mr. Helms, and the claim of privilege by Mr.
Reborn, assuming that were included in an affidavit by Mr.
Helms or Mr. Raborn,you would object to the Court's
considering the fact without its being admitted subject to
cross-examination.
But are you willing to take Mr. Houston's
statement to the same extent as if it were included in an
affidavic?
MR. RASKAUSLAS: No, Your Honor, I cannot,
and I would state further that the affidavit: said, and the
claim that was filed today said if there was another word
stated about Juni Raus and Eerik Heine and the CIA it would
be against the national security.
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THE COURT: You have asked for this
information, and this comes up by reason of your questions.
MR. RASKAUSKAS: Yes, sir.
THE COURT: All right. I do not want to
proliferate affidavits. That is the point, it seems to me
foolish just to have a great quantity of affidavits, and I
do not want you to waive any points.
It just seems to me chat if Mr. Houston states
might be assumed to be the fact to the same
the facts it
extent as
objection
if included in the affidavit subject to your
to che Court's considering that fact
fact or stat
judgment.
or alleged
ed fact or sworn fact on the motion for.summary
I want to preserve your relevancy and
materiality attack on privilege
get over the competency point.
MR. RASINAUSLAS:
claims. I am trying to
Yes, sir. I understand,
and certainly, Your Honor, the fact that we cannot accept
this statement is because we cannot accept the affidavits
which have nothing to do with the credibility certainly of
Mr. Houston and Mr. Helms.
THE COURT: I understand. Then there is no
question that the statement, his statement and the motion to
strike is not on grounds of competency but is on grounds of
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relevancy, materiality and right to attack privilege rather
than competency.
MR. RASKAUSKAS: Well, it would go even
further, Your Honor, and to state that it is just a
gratuitous statement, and Mr. Houston is not a witness at
this time.
Now, if he wants to take the stand and
answer as to the questions of pay for 1963 and 1964 we
would be delighted for him to take the stand.
THE COURT: Well, you say you do not care
about, if he took the stand and he would be asked, he would
make the answer to chat one question, I take it, and then
? would claim privilege from anything further, and the question
then is should the Court accord that privilege.
That is why I want to know what I am to rule
on, I understand I am ruling on it on relevancy and
materiality and not because it is not sworn to. I mean
your taking his statement as though he has sworn to it but
preserving every other objection including competency; is
that right?
All right.
MR. RASKAUSKAS: Yes. Yes Your Honor.
THE COURT: Everything except not sworn to.
That means it is not necessary to file
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another affidavit. Another affidavit would add nothing
to the point. It would add or subtract nothing from your
point.
MR. RASKAUSLAS: That is correct. I get
Your Honor's point, the fact of being under oath or not
under oath, no, is not our contention.
THE COURT: All right. That is all I
wanted. I wanted you to have every other point, but I
think it is foolish to waste the time.
MR. RASKAUSRAS: I agree.
THE COURT: --on just putting things under
oath when you are dealing with people whose word you can
take.
All right.
MR. RASRAUSKAS: Now, we have pending a
question.
THE COURT: All right, the question is, well,
in view of the instructions they have given him that he was
paid indirectly by CIA during the time in question I will
allow since CIA said it, you may ask him if that is--since
Mr. Houston has said it, you may ask the defendant if that
is true and just let him answer yes or no.
You heard what Mr. Houston said.
THE WITNESS: Yes, sir.
THE COURT: Is that true?
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THE WITNESS: Yes, Your
THE COURT: Aad I will then sustain further
objections on the ground that the interest of the United
111 States to my mind on this one are weightier than the interest
of_allowing the question to be answered, and of course, you
have your exception to the Court's ruling.
You understand I am giving you your exception?
You have exceptions without taking them.
AR. RASKAUShAS: Yes, Your Honor.
THE COURT: --to the Court's ruling so that
if it is necessary at any time, whatever the result of this
hearing is, if either side appeals, you will be able to
raise your point in that you have objected.
MR. RASLAUSEAS: Very well, Your Honor.
Has Your Honor ruled on my pending question
as to whether or not the salary in the approximate amount
of $8700 which he received as a GS-11 in 1963 as a highway
engineer for the Bureau of Public Roads, Department of
Commerce, was salary that was paid to him fully for his
duties in that position?
THE COURT: That is right. I am sustaining
that objection. I think it is immaterial whether he was
given leave of absence from his duties as a research
engineer of the Bureau of Public Roads for a week or a
month or parts of weeks or months in order to do work for
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the CIA during that period that he was paid, whether he was
paid directly or indirectly by the CIA, is a question in
which the interest of the Government and the rights of the
Agency under Section 403 (g) and under the cases as I
interpret them require me to sustain the objection.
MR. RASKAUSKAS: Thank you, Your Honor.
BY MR. RASKAUSKAS:
Will you state the sum you were paid for your
duties as a reserve officer during the calender year of
1963?
MR. MARONEY: May we indulge you a moment?
THE COURT: Yes.
MR. CONNOLLY: May we have the question read
back, Your Honor? We have a dispute as to the question.
THE COURT: It seems to be the same question
that I allowed for 1965.
MR. PRETTYMAN: It may not be, Your Honor.
That is what we were talking about.
THE COURT: Oh.
MR. MARONEY: As to the amount he received
for his reserve, military reserve activities, we have no
objection to.
THE COURT: All right.
THE WITNESS: I do not recall exactly but I
estimate about two hundred dollars.
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BY MR. RASKAUSKAS:
54
Now, other than the $8700 that you received
from the Bureau of Public Roads and the approximate amount
of $200 which you received from your reserve unit what other
income did you have during 1963?
MR. MARONEY: Objection, Your Honor.
THE COURT: On what grounds? I mean, are
you asserting the privilege?
MR. MARONEY: Yes, sir.
THE COURT: I mean you are asserting
privilege on that?
MR. MARONEY: That is right. Anytime I
object, Your Honor, it is only on the grounds of privilege.
THE COURT: All right.
Is there any reason for him not to state
anything he may have made from writing articles or
periodicals or any perfectly private activicies?
MR. PRETTYMAN: He did not ask the question
relating to private activicies, Your Honor.
THE COURT: Did he say that?
MR. PRETTYMAN: No, sir.
THE COURT: It was all government?
MR. PRETTYMAN: It was an all inclusive
question.
THE COURT: If you want to ask him other--I
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will sustain the objection as to additional compensation
he received from the government.
If you want to ask him whether he received
additional compensation through tutoring or pushing a
lawn mower for somebody else or
CONNOLLY: I object to that on materiality
grounds, Your Honor.
THE COURT: Well, I do not think chere is
any need--I would overrule the objection on materiality
grounds.
I will sustain the objection so far as
additional money from the government is concerned if he
made additional outside income and if he was paid a salary
by the Estonial Legion or something that he worked on, and
I understand he was some sort of an officer of some
organization which has not been stated to be a governmental
agency.
If he was paid something for being secretary
of that or treasurer of that or president of that, I think
there is no reason he should not state that. So that I
would overrule the objection unless there is some further
argument with respect to sources of income other than from
the government and will sustain the objection with respect
sources of income from the government.
MR. RASKAUSKAS: Your Honor, I asked him a
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question about all sources. I did not specify from the
government.
THE COURT: All right. If you do not want
it as cut down by the Court--
MR. RASKAUSKAS: Yes.
THE COURT: You can withdraw it.
MR. RASKAUSKAS: Well, I--
THE COURT: I understand you asked it
broadly.
MR. RASKAUSKAS: Broadly.
THE COURT: And I will sustain the objection
to it broadly because it includes government, and as I say,
if you want to ask it for non-government income I will
overrule the objection.
MR. RASKAUSKAS: Yes, Your Honor, but I
wanted to make the record clear and state that 1 want to ask
At as to government income.
THE COURT: Yes, and the objection to that
has been sustained.
MR. RASKAUSKAS: All right. Very well.
BY MR. RASKAUSKAS:
Did you file a federal income tax return for
the calender year of 1963?
MR. MARONEY: No objection, Your Honor.
THE WITNESS: Yes.
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BY MR. RASKAUSKAS:
Would you state the gross income which you
reported on that return?
MR. MARONEY: Object, Your Honor.
THE COURT: You can't get by the back door
what you can't get by the front door.
MR. RASKAUSKAS: Will Your Honor indulge me
for a moment, please?
THE COURT: Yes.
MR. RASKAUSKAS: Now, in the interest of
expediting the matter, Your Honor, with respect to the
calender year 1964 I would like to propound the same
questions?
THE COURT: A11 right.
HR. MARONEY: We object.
THE COURT: And he may answer what he got
from the Bureau of Public Roads in 1964, what he got from
the reserve in 1964, and if you want what he made outside
in 1964; but you have not asked him.
MR. RASKAUSKAS: No, I have not.
BY MR. RASKAUSKAS:
Would you state your employment--was it with
the Bureau of Public Roads in 1964?
A Yes,
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And what was your salary?
A Approximately $10,200 a year.
What was your grade?
A Partly GS-11 and GS-12.
What was your occupation with the Bureau?
A Highway research engineer.
Did you maintain the same position with the
Bureau of Public Roads in 1964 as you did in 1963 except
for a change in your in-grade and elevation in salary?
A Yes.
58
Now, was all of the salary which was paid to
you in 1964 by the Bureau of Public Roads? To you for
your performance of duties as a highway engineer?
MR. MARONEY: Objection, Your Honor.
THE COURT: Sustained.
BY MR. RASKAUSKAS:
Were you a member of a reserve component of
the Armed Forces in 1964?
MR. MARONEY: I wonder if the question might
be limited, Your Honor, to were you a member of the military
reserve and see where we go from there, the Army Reserve?
THE COURT: Yes.
MR. RASKAUSKAS: Very well. I will withdraw
the question.
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BY MR RASKAUSKAS :
Were you a member of the United States Army
59
Reserve in 1964?
A Yes.
And of what unit were you a member?
MR. MARONEY: Objection.
THE COURT: You object? Who is objecting?
MR. MARONEY: The Government is objecting on
the basis of security considerations, Your Honor.
THE COURT: Sustained.
BY MR, RASKAUSKAS:
What was your income with the branch of the
reserve unit for 1964?
A Approximately eight hundred dollars.
Did you file a federal tax return for 1964?
A Yes.
Will you state the gross amount of income you
reported on said return?
MR. MARONEY: Objection.
THE COURT: Sustained.
BY MR. RASKAUSKAS:
pin you state whether or not you received
any other income from the United States in 1964?
_MR. MARONEY: Object.
THE COURT: Suqtained. Well, no, I suppose
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it should be allowed to the same extent that he was allowed
to say whether--well, he said what Mr. Houston said was
correct. I do not know whether that covers both '63 and
'64 or not. It was a general statement.
MR. MARONEY: Mr. Houston's statement was
"during the times in question."
THE COURT: So it would be at least part of
or during the time, during the material parts of '63 and
'64.
MR. MARONEY: Yes, sir.
THE COURT: All right. That answer was yes.
That covers that. That has already been answered as far as
allow it to be answered.
MR, RASKAUSKAS: Well, I would like to make
the record abundantly clear, Your Honor, that we do not
consider that an answer to any question, the statement that
Mr. Houston made.
We can only treat that as a conclusory
statement because we cannot relate it to anything.
THE COURT: Well, t,kle witness has stated
that what Mr. Houston said was true, and I can't allow you
to ask him anything further.
MR. RASKAUSKAS: Yes. Well, I did not ask
that question of the witness, Your Honor, as to his comment
on what Mr. Houston said.
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THE COURT: Well, maybe the Court did.
61
MR. RASKAUSRAS: The Court did.
THE COURT: Well, that is as far as I will
allow it to go.
MR. RASKAUSKAS: Yes, Your Honor.
THE COURT: And it will be helpful to the
Court.
BY MR. RASKAUSKAS:
When were you first employed by the Bureau of
Public Roads?
A In January 1963.
Have you been with the Bureau of Public Roads
continuously since January of 1963?
A Yes.
When did you make your first contact with the
Central Intelligence Agency?
MR. MARONEY: Object, Your Honor.
THE COURT: Sustained.
BY MR. RASI\AUSKAS:
Now, Mr. Raus, will you state, or will your
counsel state on your behalf respecting the ninth defense
to your answer, "On those occasions specified in Paragraphs
5, 6, and 7, of the complaint, the defendant was in
possession of information furnished to him by the Central
Intelligence Agency, and when he spoke concerning the
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plaintiff on such occasions he was acting within the scope
and course of his employment by the Agency on behalf of
the United States. Accordingly the statements made by him
on such occasions were absolutely privileged."
Would you or your counsel answer at this time
whether or not you will answer any questions whatsoever
propounded to you relative to this ninth defense?
MR. CONNOLLY: Your Honor, our position is
quite clear that the defense is asserted on the basis of
Mr. Helms' affidavit and the injunction given to Mr. Helms--
to Mr. Raus by Mr. Helms in the second affidavit and by
Admiral Raborn in the statement of privilege which was filed
this morning and by virtue of the provisions of the secrecy
agreement, which is in the record, and the provisions of
the espionage laws of the United States.
We will however permit him to state whether
or not the statements of Mr. Helms contained in the first,
second, and third affidavits subject to Mr. Houston's
permitting him to do that, whether the statements in those
affidavits are true or not.
THE COURT: Well, all right. I understand
? your position. Let's find out exactly what the plaintiff
wishes him to answer. The defendant now on the stand
should not answer anything.
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Why don't you state the question and let the
defense counsel and the Government see what can be done0
seems quite apparent to me that the CIA cannot be
required to disclose the sources from which it got this
information which it says it passed on to the defendant.
That obviously would be security matters, and
think it can hardly be, subject to argument, but there may
be some border line questions which might fall on the other
side, and if you can tell us the questions you wish to ask
1 would rather rule on the specific questions rather than
this general statement.
MR. EASKAUSRAS: Very well then, Your Honor.
I determined on a general question in order to conserve the
time of the Court, and in as much as the questions about
salary, the broadest question, on that, privilege was
claimed I did not see how anything relevant that we were
interested in because we are not interested in those little
incidental things like writing an article or cutting the
grass. We are interested in that which is germane.
THE COURT: Well, I gather that you do not
wish to be more specific than that?
MR. RASKAUSKAS: Yes, I will be more specific,
Your Honor. I just stated the reasons for asking a very
general question.
THE COURT: Unless you are more specific I
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BY MR. RASKAUSKAS:
Now, will you state whether or not on November
9, 1963 in New York at a special meeting of the Board of
the Legion of Estonian Liberation in the presence and
hearing of one Aleksander Allikas and one Elmer Keerd and
other persons, did you state at that time"that Eerik Heine
is a communist" and "Ecrik Heine is a KGB Agent", and did
you attribute that statement to the Federal Bureau of
Investigation?
MR. PRETTYMAN: Wait a minute. We have a
couple of questions here.
THE COURT: All right.
MR. PRETTYMAN: Break it down.
MR. RASKAUSKAS: I will break it down.
THE COURT: You mean did he
MR. RASKAUSKAS: I will break it down, Your
Honor.
THE COURT: You mean did he make the
statements before the attribution?
MR. RASKAUSKAS: Yes.
BY MR. RASKAUSKAS:
aid you attend such a meeting on November 9,
1963?
A Yes.
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Did you make a statement at said meeting?
A Yes.
At that meeting did you say that Eerik Heine
was a KGB Agent?
MR. MARONEY: No objection, Your Honor.
THE WITNESS: Yes.
BY MR. RASKAUSEAS:
At that meeting did you state that the source
of your information was the Federal Bureau of Investigation?
MR. MARONEY: No objection, Your Honor.
TEE WITNESS: No.
BY MR. RASKAUSRAS:
You deny that?
A Yes.
Did you state you received the information
which you conveyed at that meeting from any official
government source?
MR. PRETTYMAN: The question is, from any
official government source. You mean naming the source?
THE COURT: The question is perhaps
ambiguous. Did he say he got it from government authoricy
or did he say he got it from a specific government agency.
The question is ambiguous.
BY MR. RASKAUSKAS:
Did you state you received this information
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from a specific government agency?
A No.
Did you state that you received this informa-
tion from official sources?
A Yes.
Did you name the official sources?
A No.
At that meeting did you ever use the words
"Federal Bureau of Investigation"?
A Yes.
Did you ever use the initials "FBI"?
A Yes.
Would you explain how you used those words
and initials at that meeting?
A I stated that whoever does not believe what I
said is free to contact the Federal Bureau of Investigation.
Did you state anything further about the
Federal Bureau of Investigation?
A No.
Did you make this statement on the basis of
information supplied to you by the Federal Bureau of
Investigation?
66
THE COURT: Wait a minute before you answer.
I gather they want to confer or think about it.
MR. PRETTYMAN: May we have the question read
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(The last question was read by the Reporter.)
THE COURT: Which information?
MR. RASKAUSKAS: Well, I will clarify that.
I am asking him, Your Honor--
THE COURT: You say who may have--you see you
have gotten several steps from the important statement, and
I am not sure whether this question refers to the alleged
slanderous remarks or to what he has said about "take it up
with the FBI."
MR. RASKAUSKAS: I believe the witness has
stated that he advised certain people at this meeting that
if they did not believe the statements he made about Eerik
Heine that he was a KGB Agent, that they could check with
the FBI.
THE COURT: That is right. Is that what you
want to know?
MR. RASKAUSKAS: Now, I was asking him to
state whether or not he was furnished information by the
Federal Bureau of Investigation specifically that Eerik
Heine was a KGB Agent?
MR. MARONEY: No objection, Your Honor.
THE WITNESS: No.
BY MR. RASKAUSEAS:
Theretofore,
prior to November 9, 1963, had you
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at any time had a conference with any representative of the
Federal Bureau of Investigation concerning Eerik Heine?
MR. MARONEY: Objection, Your Honor.
MR. CONNOLLY: If Your Honor please, this is
in an area, and I must say that in my conferences with the
witness I do not know what the answer is because I do not
know whether I covered this particularly because I do not
remember it, and I wonder if we may have a conference
because we have a dispute as to whether or not we get into
this sensitive area or not?
THE COURT: Well, I am not quite clear.
MR. MARONEY: May the Government object, Your
Honor, on the basis, object to the materiality of his
conferences with another government investigative agency?
THE COURT: Well, is it materiality? I do
not think that materiality is the reason. It seems to me
that privilege might be, if you claimed that any talks he
has had with the FBI was or might have been in the course
of his duties for the CIA,I think that might be a valid
claim of privilege.
I would consider that; I do not want to make
411 a ruling on it. Let me say that I think that anyone who
has read the newspapers in the last ten years knows that at
one time or another there has been some public discussion
about the functions of the FBI and the functions of the CI12
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and there have been suggestions, whether warranted or not,
in the press that there was a certain feeling between
certain persons in the agencies.
Now, this Court is not the forum in which any
such matters should be threshed out. I would think that a
claim of privilege, if there is a bona fide claim of
privilege, might be sustained. I do not see that a claim
of materiality could be sustained. If the case gets by
the privilege point it would seem that this might become a
matter which could be considered on the merits of the case,
I would think, not from what he has said but on what I know
from the papers that I have read in the case that it is
? what the plaintiff claims, and I think there is a claim of
?
some statement from the FBI, the FBI knew nothing about it,
or words to that effect, that the FBI had nothing against
the plaintiff, or words to that effect. There is something
like that in the papers.
MR. CONNOLLY: As long as that has been
stated by Your Honor we want to make it clear that we do
not agree with that part of the assertion.
THE COURT: I understand. I have to look
at this case on what the allegations are and what has been
offered by both sides, and I can't look only at--
MR. CONNOLLY: This is why I raised the
question of materiality, Your Honor. The pleadings, the
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complaint make no reference to the FBI. I think it is
therefore not appropriate to come into this case, and I
do not want my silence to be taken as consent.
THE COURT: You mean this has been dragged
in since the complaint?
MR. CONNOLLY: Yes, Your Honor. We have
not filed any--
THE COURT: Dragged in since the complaint.
I remember seeing ic in the recent answers filed by the
plaintiff. I have not checked heretofore to see whether
it was in the complaint.
MR. RASNAUSKAS: Your Honor, it was not
specified in the complaint, and the federal rules do not
require that such a fact should be specified in the
complaint. The complaint should be a plain statement of
the allegations which the plaintiff made, and I think we
have that in our complaint, and we are satisfied with it.
THE COURT: All right.
Naw, would you read the question again, Mr.
Owens, or would you propound the question again so that
counsel can tell me what position they take on it and so
the Court may rule on it after I have heard that argument?
MR. RASKAUSKAS: May the Reporter read that
question?
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71
THE COURT: It is a long way.
(The last question was read by the Reporter.)
MR. CONNOLLY: Your Honor, normally, of
course, counsel would not consult with the witness on the
stand. The difficulty here is that he may have information
which we do not have with respect to matters affecting
national security, and I wonder if you are going to overrule
the other objection, and perhaps--
THE COURT: It seems to me that under the
circumstances it is appropriate for the witness to state
privately to his counsel and to Government counsel what his
answer would be so that they may know whether to object or
not, particularly if the Government counsel, as I think it
important, I think his counsel are entitled to hear it, and
Government counsel are entitled to know what the answer
would be before they decide whether to object or not in
view of the statement that has been made by Mr. Prettyman,
and I suppose Government counsel have no greater knowledge
than Mr. Prettyman would have.
MR. KENNEY: If you are going to do it, I
think you had better do it in the anteroom.
(The witness left the stand.)
THE COURT: The anteroom is occupied by--the
main anteroom is occupied by someone who is working for me
on another case. So you can just use the robing room, and
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that will be all right.
(Short pause in proceedings.)
MR. CONNOLLY: Your Honor, I think this is a
matter we should take up at the bench oucside of the
presence of anybody.
THE COURT: All right, come up here. Do you
want it on the record or off the record?
MR. KENNEY: Off the record.
MR. CONNOLLY: I do not much care which.
THE COURT: Well, at the request of counsel
for the Government and at their request, I will hear it in
chambers, and if anybody wants it on, all right.
MR. STANFORD: If we feel it is necessary at
that time, we can put it on the record after the discussion.
THE COURT: Of course.
(Thereupon, there was a short recess taken,
after which the following occurred:)
THE COURT: There is a question before the
Court. The witness has been asked, I gather, whether he
discussed the matter generally with the FBI before the
meeting in November 1963 to which reference has been made.
Is that the question? Is that substantially
the question?
MR. RASKAUSKAS: I have to apologize, Your
Honor.
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THE COURT: Is the question which is now
before the Court for ruling if objection is made whether
the defendant, the witness, had discussed the general
subject with the FBI at any time before the November 1963
meeting?
MR. RASKAUSKAS: Yes, Your Honor.
THE COURT: Is there any objection to it?
MR. MARONEY: No objection, Your Honor.
THE WITNESS: Yes.
BY MR. BASKAUSKAS:
When did you discuss this matter with the FBI
prior to November 9, 1963?
MR. MARONEY: Your Honor, we have to interpose
an objection at this point. I wonder if I might take an
additional minute to talk to Mr. Raus?
THE COURT: All right.
MR. MARONEY: We misunderstood his answer
when we were talking to him previously outside.
THE COURT: All right.
(Witness left the stand.)
MR. PRETTYMAN: The question was changed.
THE COURT: The question changed?
MR. PRETTYMAN: Yes, sir.
THE COURT: You mean I asked a different
question?
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MR. CONNOLLY: I will be happy to tell you
why, Your Honor.
THE COURT: I gather I changed your question
just a little from what counsel stated. Maybe we had
better have--well, maybe the answer will straighten it out.
My question was different from yours.
MR. MARONEY: I am sorry, Your Honor.
THE COURT: All right. Does someone wish
to make a statement or shall we wait for the next question?
MR. MARONEY: Oh, I think we have to wait
for the next question, Your Honor.
TRE COURT: All right.
(The Witness returned to the stand.)
BY MR. RASKAUSKAS:
Prior to November 9, 1963 were you furnished
any information by the Federal Bureau of Investigation
specifying that Eerik Heine was a KGB Agent?
MR. MARONEY: No objection.
THE WITNESS: No.
BY MR. RASKAUSKAS:
Prior to November 9, 1963 at any time did you
have a conference with any representative of the FBI
concerning Eerik Heine?
MR. MARONEY: No objection.
THE WITNESS: Yes.
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BY MR. RASKAUSRAS:
Was this conference at your request or at the
request of a representative of the FBI?
MR. MARONEY: Objection, Your Honor.
THE COURT: That is an objection by the
Government? Is it an objection by the Government or by
the--
MR. MARONEY: By the Government, Your Honor.
THE COURT: Sustained.
MR. RASKAUSKAS: The objection is sustained
to at whose request?
THE COURT: The Government.
MR. RASKAUSKAS: Or the FBI?
TEE COURT: No, not the FBI, by the
Government. Well, I take it it is the CIA.
MR. RASKAUSKAS: No I mean as to that
question as to who initiated--
THE COURT: Yes, who initiated the conference,
and the Government has objected.
MR. RASKAUSKAS: And at this point I would
like to have Mr. Maroney specify on whose behalf he is
making the objection, whether on behalf of the CIA or the
FBI?
MR. MARONEY: On behalf of the United States,
Your Honor.
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MR. RASKAUSKAS: Well, I believe that the
case that Your Honor cited, U.S. vs. Reynolds, holds that
a formal claim of privilege must be lodged with the Court
by the head of an agency; and we do not have a formal claim
of privilege here lodged with the Court by the Attorney
General or the FBI of the United States or by the Director
of the FBI, and I therefore feel that we are entitled to
know on whose behalf this claim is made, in accordance with
this Supreme Court decision which Your Honor cited to us,
MR. CONNOLLY: The trouble with that matter,
that is immaterial to this lawsuit, who initiated the
inquiry because he has not sued on anything that Mr. Raus
said for the FBI.
THE COURT: Well, I think the objection, the
objection, the claim of privilege is made on behalf of the
United States by the head of the Agency, namely, the head
of the CIA, the claim that has been filed today formally.
Now, the attorney for the Department of
Justice makes the objection on behalf of the United States
in support of that claim of privilege and not in support
of any other claim of privilege.
Do I understand it correctly? In support of
the claim of privilege that has been made, not in support
of some claim of privilege that might be made.
MR. MARONEY: That is correct.
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THE COURT: If it is in support of some claim
of privilege which might be made I guess we are going to
have to hear from Mr. Katzenbach.
MR. MARONEY: I think it is in support of
this claim of privilege, but I think that an additional
claim of privilege could be made by the Attorney General,
and I would request that the Court not require an answer
without authorization from the Department.
THE COURT: Well, I do not want to hold up.
Perhaps you could call Mr. Katzenbach at lunchtime and find
out whether--the simple thing would be whether he would
authorize you to make a claim on behalf of the FBI, but
if you make it on behalf of the CIA, I mean, if you make
it on behalf of the United States, as you accurately stated.
MR. MARONEY: Yes, sir.
THE COURT: In support of the claim of
privilege, asserted by the head of the CIA, the Court will
sustain it.
MR. MARONEY: Yes.
THE COURT: Or you make it on two bases.
MR. MARONEY: We do. We do make it under
this claim of privilege that is on file with the Court, Your
Honor, and I think it is supportable under the claim
already made concerning his acttvities.
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THE COURT: Or because it might disclose
78
- -
some of his activities as an agent of the CIA obviously.
MR. RASKAUSKAS: Would Your Honor listen to
argument on thik' point?
THE COURT: Certainly.
MR. RASKAUSKAS: Your Honor, U.S. vs. Reynolds
holds that the head of an executive branch of the government
after personal review must formally lodge the complaint.
Now, I hardly know whether the head of the CIA anticipated
this question regarding the FBI, and I think we are entitled
to some substantial justification by counsel here as to on
what basis the CIA claims the privilege on conferences that
this wan had with the FBI.
I think we are entitled to an answer.
THE COURT: Well, it is my understanding
that the claim of privilege does not mean that the head of
the agency must know every possible question which may be
asked. You state the general grounds of privilege, and
the Court must rule on the point raised by counsel as to
whether they seem sound.
We have the general counsel of the CIA here,
I think, and since this objection was made by someone from
the Department of Justice, it seems that the duty of the
courts would be served by asking Mr. Houston, General
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Counsel of the CIA, whether he has authorized or whether
he approves the making of this objection :VI support of the
privilege of the United States claimed by the head of the
CIA.
MR. HOUSTON: The answer to that question is
yes, sir.
MR. RASKAUSKAS: Your Honor, may I make this
inquiry? These gentlemen did not know what this witness'
answer was going to be before he made it.
It required two conferences off the stand,
and I think it gets us into the area of patent absurdity,
and I said to the Court earlier that we are interested in
national security and we are not going to be presumptuous
about the claim of privilege because I firmly believe that
the Executive Department has a privilege where State secrets
are involved.
This is the law, and we affirm it; but in
this particular situation I think we are entitled to have
this claim asserted by the Director of the Federal Bureau
of Investigation or by the Attorney General of the United
States and not by the particular counsel that happened to
be in court at this hearing.
THE COURT: In effect, let me say two things:
In the first place the two conferences are made necessary
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because at the end of the long discussion the Court
attempted to rephrase the question that had been asked by
the plaintiff and apparently rephrased it with just enough
difference to produce a different answer.
I think that has been clarified. Now, the
objection, as I understand it, is now made, you say not by
Justice counsel, the particular counsel that happened to be
here. The United States Attorney is here, and the Court
looks upon the United States Attorney to take the
responsibility for speaking for the Government in cases in
this Court.
If he allows, and very appropriately, we are
? happy to have someone from the Washington office of the
Department of Justice here, if he makes an objection with
which Mr. Kenney does not agree and which Mr. Kenney
cannot associate himself I expect Mr. Kenney to say so.
He speaks for the United States. In this
case we are fortunate in having the general counsel of the
Agency that asserted the privilege on behalf of the United
States. He has stated that on behalf of the United States.
He has stated that on behalf of the United States in
support of the privilege of the United States which has
been asserted by the head of the Agency of which he is
general counsel, he feels that this question should be
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objected to on the grounds of privilege.
For that ground and with the understanding
that Mr, Kenney associates himself with it you do, Mr.
1110 Kenney?
MR. KENNEY: I do indeed,. Your Honor.
THE COURT: On those grounds the Court will
sustain the objection.
MR. RASKAUSKAS:' Very well, Your Honor.
THE COURT: And you have your clear appealable
ruling?
MR. RASKAUSKAS: Yes Your Honor.
BY MR. RASKAUSKAS:
prior to the meeting of the Board of the
Legion of Estonian. Liberation on November 9, 1963 did you
cparticipate in a series of conferences concerning Eerik
Heine with representatives of the Central Intelligence
Agency?
MR. MARONEY: No objection.
WHE COURT: What is the date?
MR. RASKAUSKAS: Prior to November 9, 1963.
THE COURT: All right.
THE WITNESS: Yes.
BY MR. RASKAUSKAS:
jAihen was the first such conference?
MR. MARONEY: Can we have a moment, Your Honor?
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THE COURT: Yes.
82
MR. MARONEY: The Government objects, Your
Honor.
THE COURT: Why is the date important if you
have the facts?
MR. RASKAUSKAS: The date is important
because we would like to know with whom he had the conference,
whe, when he was first supplied such information.
THE COURT: Let the Government make a list
of what you want. When, with whom--go ahead--so we can
see what they will agree to and what they will object to.
When and with whom? Are those the two things
you want?
MR. RASKAUSKAS: Your Honor, there are a
series of questions which we would like to ask on that
subject.
TUE COURT: You had better take them one at
a time. Take them one at a time then.
MR. RASKAUSKAS: Does Your Honor ask this
question of me for the purpose of getting what our line of
reasoning is?
THE COURT: Yes, I want to get your line of
reasoning so that they can decide where they want to draw
the line.
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MR. RASKAUSKAS: All right.
83
THE COURT: In the beginning, at the middle,
or at the end.
MR. RASKAUSKAS: ell, we would ask then when
was the first conference held, ow many participants were
there who initiated the conference, did they came to him,
I
Old he go to them, what was discussed V hat facts were
a
stated about Eerik Heine, 0 hat the discussion was, was he
then given an opportunity to become an informer for the
CIA or a casual contact or wIlat his relationship was.
All of this we would like to develop, and we
felt the sequential way was to start with the first
conference, which would be the most appropriate way.
1MR. MARONEY: To each one of those indicated
questions, Your Honor, the Governpent would interpose an
pbjection on the basis of Admiral Raborn's statement with
(respect to secrecy.
MR. RASKAUSKAS: All right. To make the
record tyndantly clear, the next question we would like to
ask is, the position of the person who made qny statements
that were made to hi bout Eerik Heine cthe authority of
that person,
-
and the precise statements that were made.
THE COURT: You mean were made to the witness
before the meeting of November 3rd?
MR. RASKAUSKAS: Yes, at the first--
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THE COURT: You want to know who authorized
him to make the statements which he made at the November--
MR. RASKAUSKAS: Exactly what information
was supplied to him. Those are the questions.
THE COURT: All right.
MR. MARONEY: Ti/e object to all the questipns,
Your Honor.
MR. RASKAUSKAS: Any other further questions
then would be an imposition upon the Court, and we
therefore would not ask them.
TPE COURT: All right. Let me get again.
Mr. Houston, you are asserting the privilege?
KR. HOUSTON: Yes.
THE COURT: Of the United States on the
assertion made by the head of your Agency?
MR. HOUSTON: That is correct, Your Honor.
THE COURT: Mr. Kenney, are you associating
yourself with this?
NR. KENNEY: Ys, sir.
THE COURT: I will sustain the objection.
think I am required to do so as I understand the rulings of
Reynolds and the other cases.
MR. RASKAUSKAS: Yes, sir.
Well, out of an abundance of caution I would
like to put on the record the statement that the plaintiff
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at this time elects to terminate the deposition of the
defendantbecause the claim of privilege precludes inquiry
into any matters which we consider relevant at this time.
TBE COURT: All right.
MR. RASKAUSKAS: Thank you.
MR. CONNOLLY: Now, may the witness be
excused, Your Honor.
THE COURT: Do you wish to ask him any
questions?
MR. CONNOLLY: No questions.
THE COURT: Well, I guess there is nothing
more we can do in this part of the day.
MR. CONNOLLY: I think I would like to ask
this question.
object.
THE CLERK: Wait a minute, Mr. Raus.
MR. CONNOLLY: Maybe the United States would
CROSS-EXAMINATION
BY MR. CONNOLLY:
Have you read the three affidavits filed by
Richard Helms and filed by us in your behalf in this case?
A Yes.
MR. RASKAUSKAS: I object to that.
THE COURT: On what grounds? There can't
be any objection whether he read them, can there?
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MR. RASKAUSKAS: Mr. Stanford will answer
that, Your Honor.
THE COURT: All right.
MR. STANFORD: Your Honor, the statements of
Mr. Helms are not subject to cross-examination. If Mr.
r--
Raus affirms those statements here his affirmation is not
subject to cross-examination.
This is patently clear because Mr. Raskauskas
has just addressed to him all of the contents of the
essential paragraphs of those three affidavits, and the
privilege has been claimed.
Therefore, we do not think it is proper for
the defendant in this case to try to get mileage out of a
mere affirmation of an affidavic which has been filed.
THE COURT: I understand. I think you are
objecting to the next question and not to this one.
The question is has he read them, and counsel
as a matter of personal privilege might want that one with
respect to having done something without their client's
knowledge.
MR. RASKAUSKAS: Your Honor, if he gives an
answer to this next question we respectfully then demand
to have a full cross-examination in view of his answer.
THE COURT: You do not mean the immediate
one, the one that follows?
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MR. RASKAUSKAS: The self-serving answer that
is coming, Your Honor, and we think we have a right to that.
THE COURT: I understand. He is going to
say he read it. The question is, is it true? That is
going to be that question.
-
MR. CONNOLLY: May we have an answer to the
pending question? I think his answer is yes. Is it?
THE COURT: I think he said he read them.
Now, that is that.
BY MR. CONNOLLY: M
Now, do not answer the question, Mr. Raus,
until everybody along the line of tables here has a chance
to interpose an objection, if they care to do so.
THE COURT: Yes.
BY MR. CONNOLLY:
\
\
//- Q Tell the Court whether or not the statements
/of fact therein contained are true or not true, to the best )
i
of your knowledge?
THE COURT: Holdup. Do not answer.
MR. RASKAUSKAS: Now, I would ask Your Honor
to rule on this question irrespective of what his answer is,
yes or no, that we will have a right to full and complete
cross-examination of every possible inference that can be
drawn from the answer that he is about to give, if he is
permitted to answer this question.
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THE COURT: Does the Government object?
MR. MARONEY: Well, of course, if Your Honor
were to rule that there would be full cross-examination then
the Government would object because we would have to
continue to interpose the objections previously made.
THE COURT: Well, he has answered part of it
at the request of the Court, not the full one, and if you
repeat your objection, you want me to make my ruling in
advance before you make your objection.
If you make your objection I will sustain it,
and since I gather you are making the objection--
MR. MARONEY: We have no objection to his
answering.
TRE COURT: This one question but with the
understanding that if he is allowed to bring that into the
case as affirming the truth, in view of the fact that you
have already said, I thought I had asked him very much the
same question without objection, I asked him a part of it
before, but if it is a question of opening up--you object
to opening up cross-examination?
MR. MARONEY: Yes, sir.
THE COURT: Well, it seems to me then that
the case has to rest on the claim of privilege and not on
his affidavit that it is true. It seems to me there are--
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Your Honor.
It may be
89
MR. CONNOLLY: I think I can resolve this,
THE COURT: It may be a thinner question.
a thinner question if he would, if the CIA claims
privilege and says they told him to do these things.
Now, he has alleged that he did the same things,
he alleged through his
substantially the
their affidavits.
same
He
signed by his counsel;
counsel in his answers exactly or
things that the CIA have put in
has not sworn to it, but it has been
so that these representations have
been made on his behalf.
I do not think there is any such charm to an
oath of his saying so that adds very much to it one way or
the other.
MR. CONNOLLY: What I want to say, Your Honor,
I do not think that the answer to this question is necessary
in support of my motion. I asked the question however
merely to prevent any adverse inference from it being drawn
from the failure to answer the question.
THE COURT: All right.
MR. CONNOLLY: So I do not insist on an
answer providing no adverse inference is drawn therefrom.
THE COURT: No, I understand. You have
asked the question, and the Government has stated they will
object if the Court will allow further cross-examination.
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him
think it would probably be unfair to allow/to answer the
question under oath and get any additional advantage which
the oath might furnish, which frankly does not seem to me
very great, in view of the allegations in the affidavits
which have been filed; but I think it would be unfair to
allow him to have the additional advantage of a statement
of that sort without giving the other side the benefic of
cross-examination.
So I will sustain the objection. As
understand it, the Government is claiming the privilege if
the Court is going to allow full cross-examination.
MR. MARONEY: Yes.
THE COURT: All right.
MR. MARONEY: I guess the witness may now be
excused.
THE COURT: Yes.
THE CLERK: Stand down.
(Witness excused.)
THE COURT: Now,
gentlemen we have just a
few minutes before the luncheon recess. Do you wish to
argue the mocion for summary judgment today or do you wish
to argue the motion for summary judgment at some later
time, and is the record closed on what is going to be before
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the Court on the motion for summary judgment or does either
side intend to put anything else in?
MR. RASKAUSKAS: Your Honor, in view of the
supplemental memorandum that has been filed today and the
formal claim of privilege I think it would be appropriate
if we continued this matter for a reasonable period of time.
THE COURT: All right. Now, how long would
you want? I am just thinking of the schedule, As a
practical matter, unless it is heard next month it probably
cannot be heard until August. It is not going to be
practicable to hear and decide the case by reason of the
fact that I am caking the earliest vacation this year. I
will be the first of our Judges to go off and the first to
come back, and other tax dockets, other cases that have been
set, and one thing and another will make it impractical to
hear this between, say, mid-May and the first of August.
We could do it in late May if you need time.
We can work it out somehow.
MR. RASKAUSKAS: Your Honor, I think two
weeks would be sufficient, I would like to state to the
Court that we would like--
THE COURT: Get my book, so I can see my
schedule.
MR. RASKAUSKAS: We condidered thisLopportunity
this morning to attempt to take the deposition before the
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Court as an accomodation from Your Honor in saving all the
counsel a substantial amount of time running back and forth
between Washington and Baltimore. Mr. Stanford and I both
appreciate that.
THE COURT: Well, as I said before, I
appreciate the attitude you have taken toward the Court
throughout in calling up about the possible appearances,
and so forth.
Let me say this, that I have had the corps of
photographers in my chambers and have told them the rules
which apply about photographs, that is, that no photographs
can be taken in the courtroom, and no photographs can be
taken of any party in this federal building without his
consent; that if the parties wish to consent that the Court
will indicate a place, and the Marshal will take them to
a place where photographs can be taken with the consent of
the parties. After they get on the street, the streets
are free, to the photographers and anybody else.
The photographers have all understood it, and
understand that some people, some of the parties or
lawyers or someone have indicated that they have no objection
to photographs being taken. I wanted to say that so that
everybody might know what the Court had indicated.
Well, two weeks would carry it to Thursday
the twelfth. I think we could have it sometime between
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Thursday the 12th and Tuesday the 17th, I thought everybody
would like to know while you are here.
Off the record.
(Discussion off the record.)
THE COURT: Counsel can have any choice
between two possible dates, Thursday, May 12th, and Tuesday,
May 17th. I can give you either date.
MR. CONNOLLY: I would prefer the 12th, Your
Honor.
MR. STANFORD: I do not prefer either, Your
Honor. My disagreement is just because of my schedule,
Your Honor. I do have something on that day.
MR. CONNOLLY: Your Honor, there are eight
lawyers in a long case, and we have had depositions
scheduled now for six weeks and we have finally agreed on
the week of May 16th.
THE COURT: The whole time?
MR. CONNOLLY: The whole week, yes, sir, in
New York. The next three weeks are really back breaking
weeks.
MR. PRETTYMAN: I will be out entirely during
May, sir, but Mr. Connolly can be here sometime.
THE COURT: How about the 13th?
MR. CONNOLLY: The 13th would be wonderful.
MR. STANFORD: The 13th is fine.
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THE COURT: How long will you be because
that is our short cause day, and we have arraignments, and
think we have thirty some tomorrow, and they have got to
be divided between the Judges, and short criminal matters
of one sort and another.
MR. CONNOLLY: I tried to make my pleading
which 1 filed this morning, or my memorandum to be concise,
and I think I have said just about everything I can say on
it. There are not too many cases on this subject.
THE COURT: You think an hour a side will
cover it?
MR, CONNOLLY: Yes. That would be all right.
MR. STANFORD: I think that might be a little
bit low.
THE COURT: A-half day?
MR. STANFORD: I think a-half day would be
all right.
MR. CONNOLLY: I shall not take more than an
hour, Your Honor.
THE COURT: Well, would it be convenient to
have it in the afternoon?
MR. STANFORD: Yes, sir.
MR. CONNOLLY: Yes, sir.
THE COURT: Two o'clock?
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as necessary.
o'clock p.m..
95
MR. STANFORD: Yes, sir.
MR. CONNOLLY: Yes, sir.
MR. RASKAUSKAS: Yes, sir.
THE COURT: I think we can then run as long
MR. STANFORD: Thank you, Your Honor.
MR. RASKAUSKAS: Thank you, sir.
MR. CONNOLLY: Thank you, sir.
(Thereupon, the hearing was concluded at 1:01
Certified to be a true and correct transcript
of the proceedings in the above case.
Official Reporter
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EERIK HEINE,
JURI RAUS,
000100100001-2
IN THE UNITED STATES DISTRICT COURT
: FOR THE DISTRICT OF MARYLAND
Plaintiff,)
v.
Defendant.)
SUPPLEMENTAL MEMORANDUM OF THE DEFENDANT
IN SUPPORT OF HIS MOTION FOR SUMARY JUDGMENT
Civil Action No. 15952
By virtue of the number of charges and emotional appeals put
forth by the plaintiff in Court papers and in the press, defendant wishes
to restate his legal position upon the pending motion in the simplest
and most concise terms.
First, in three consecutive affidavits, Richard Helms, Deputy
Director of Central Intelligence, has sworn that on the occasions speci-
fied in paragraphs 5, 6 and 7 of the Complaint, when the defendant spoke
of the plaintiff, he was acting in the scope and course of his employment
by the Agency on behalf of the United States.
Second, the affidavits state that Raus was employed on those
occasions specified in paragraphs 5 6 and 7 of the Complaint to carry
out a specific assignment on behalf of the Agency; that he was furnished
information by the Agency to carry out his assignment, and that he was
instructed by the Agency to disseminate that information. The third
affidavit states in categorical terms that the defendant "was instructed
to warn members of Estonian emigre groups that Eerik Heine was a dispatched
Soviet intelligence operative, a KGB agent."
Accordingly, it is clearly established that Raus was acting as
a subordinate government employee in the discharge of orders lawful on
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their face. Under such circumstances he possesses absolute immunity from
the liability asserted against him. The principle is well established.
8 WIGMORE ON EVIDENCE (McNaughton rev. 1961) ?2368 states: "A subordinate
or ministerial official -- i.e., one who acts under the orders of a superior
official -- is absolutely exempt from liability if the harm done by him is
done solely in implicit obedience to an order lawful on its face." Where
judgment and discretion may be involved on the part of an official, a de-
famatory utterance is still absolutely privileged if made within the "outer
perimeter" of the employee's duties. This is clearly the rule laid down in
Barr v. Mateo, 360 U.S. 564 (1959) and Howard v. Lyons, 360 U.S. 593 (1959)
1/
and followed in a number of cases decided by the various Circuits.
Since Raus was acting under specific instructions, the question of
whether the Agency was itself acting within the scope and functions entrusted
to it by law becomes immaterial.
However, the second and third affidavits of the Deputy Director
clearly establish that the Agency's instructions to Raus were within the
2/
scope of the functions entrusted to it by law. Title 50, ?? 403(d)(3) and
1/ The citations to which are set forth in pages 3 and 4 of defendant's
prior memorandum.
2/ ?403(d) states:
"For the purpose of coordinating the intelligence activities
of the several Government departments and agencies in the interest
of national security, it shall be the duty of the Agency, under the
direction of the National Security Council --"
* * *
(3) "to correlate and evaluate intelligence relating to
the national security, and provide for the appropriate dissemination
of such intelligence within the Government using where appropriate
existing agencies and facilities: Provided, That the Agency shall
have no police, subpena, law-enforcement powers, or internal-security
functions: Provided further, That the departments and other agencies
of the Government shall continue to collect, evaluate, correlate, and
disseminate departmental intelligence: And provided further, That the
Director of Central Intelligence shall be responsible for protecting
intelligence sources and methods from unauthorized disclosure;"
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3/
403g vest authority in the Director of Central Intelligence to protect the
integrity of the Agency's foreign intelligence sources and methods of what-
ever nature and wherever found. The affidavits of the Deputy Director estab-
lish that foreign intelligence sources existed within or were developed
through Estonian emigre groups. Accordingly, there can be no dispute con-
cerning the fact that the Agency's undertaking with respect to these matters
was within the "outer perimeter" of its statutory authority.
Concerning, therefore, the question of absolute privilege of the
defendant, the matter has been summarized by the Supreme Court in Garrison v.
Louisiana, 379 U.S. 64 (1964), "Federal officials enjoy an absolute privilege
for defamatory publication within the scope of official duty, regardless of
the existence of malice in the sense of ill-will."
The foregoing matters are quite distinct and apart from the question
of the government's claim of an evidentiary privilege to protect state secrets
in the form of foreign intelligence sources and methods. This is a privilege
which does not essentially concern the defendant, except as the defendant
points to the government's claim of privilege in this regard to satisfy the
Court that no further information will be available to the plaintiff from
government sources upon which he might dispute the defendant's evidence of
Agency employment and direction.
3/ ?403g provides:
"In the interests of the security of the foreign intelligence
activities of the United States and in order further to implement the
proviso of section 403(d)(3) of this Title that the Director of Central
Intelligence shall be responsible for protecting intelligence sources
and methods from unauthorized disclosure, the Agency shall be exempted
from the provisions of section 654 of Title 5, and the provisions of any
other law which require the publication or disclosure of the organiza-
tion, functions, names, official titles, salaries, or numbers of person-
nel employed by the Agency: Provided, That in furtherance of this
section, the Director of the Bureau of Budget shall make no reports
to the Congress in connection with the Agency under section 947(b)
of Title 5.
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The existence of such a privilege on behalf of the government
4/
"has never been doubted," as part of the common law of evidence. The cases
are collected in 8 WIGMORE, supra, at pp. 794-795. The privilege, of course,
cannot be gainsaid where it is expressly declared by statute. See 8 WIGMORE,
supra, ?799. 50 U.S.C. ?403g provides that "the Agency shall be exempted
from . . . the provisions of any. other law which require publication or
disclosure of the organization, functions, names, official titles, salaries,
or numbers of personnel employed by the Agency."
As a consequence, defendant's affidavits clearly establish the
facts necessary to support his immunity from liability in this suit, and
as long as the Agency claims an evidentiary privilege to protect United
States intelligence information, the plaintiff is denied access to any other
information within the control of the government. This is not a strange
result, despite the plaintiff's outcry that the procedure is unfair. All
privileges, whether recognized by the common law,set forth in statutes or
found in the Constitution, have recognized that their very existence may
well deprive an adversary of his means of proof and thereby impair to that
extent the judicial search for truth, but it is thought that society is
better served by recognizing the privilege than by a disclosure of the facts
which might be developed except
Viscount Simon, puts
the matter
and Co., [1942] A.C. 624, 643:
for the privilege. The Lord Chancellor,
extremely well in Duncan v. Cammell, Laird
"After all, the public interest is also the
interest of every subject of the realm, and while, in these exceptional cases,
the private citizen may seem to be denied what is to his immediate advantage,
he, like the rest of us, would suffer if the needs of protecting the interests
of the country as a whole were not ranked as a prior obligation."
4/ See Rule 33, Uniform Rules of Evidence and Rule 227 of the Model Code
of Evidence.
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Any rule which would impose liability on the defendant in this
case would expose every agent of the Central Intelligence Agency throughout
the world to the peril of an adverse judgment in a law suit against him,
no matter how ill-founded, simply because the agent is prevented by the
nature of his job from defending himself by setting forth the complete
intelligence concerning the claimant.
OF COUNSEL:
Hogan & Hartson
815 Connecticut Avenue
Washington, D. C. 20006
Respectfully submitted,
IPAUE R CONNOLLY
Paul R. Connolly
5411 Albemarle Street
Westmoreland Hills
Washington, D. C. OL 2-5851
-5-
E. Barrett Prettyman, Jr.
3708 Bradley Lane
Chevy Chase 15, Maryland OL 6-7289
Attorneys for Defendant
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CERTIFICATE OF SERVICE
A copy of the foregoing SUPPLEMENTAL MEMORANDUM OF THL DEFENDANT
IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT was hand delivered this 28th
day of April 1966, to Ernest C. Raskauskas, Esquire, 910-17th Street, N. W.,
Washington, D. C., and Robert J. Stanford, Esquire, 1730 M Street, N. W.,
Washington, D. C., Attorneys for Plaintiff.
PAUt. R. CONNOLLY
\A
Paul R. Connolly
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
EICRIK HEINE,
JURI RAUS,
Plaintiff,
Civil. Action No. 15952
Defendant.
CLAIM OF PRIVILEGE BY THE
CENTRAL INTELLIGENCE AGENCY
The plaintiff has filed suit against the defendant for slander in
connection with statements rrade by the defendant on occasions specified
in paragraphs five, six and seven of the Complaint. As is shown by
affidavits previously filed in this case by the Deputy Director of Central
Intelligence, the defendant on those occasions was acting as an employee
of the Central Intelligence Agency and made the statements in question
pursuant to instructions from this Agency.
The plaintiff has requested taking testimony from the defendant, and
interrogation in that regard of the defendant is scheduled in this Court
on April 28. 1966.
The information respecting the employment by this Agency of Juni
Raus previously furnished to the Court was released by the Agency in
light of all the circumstances then existing. However, after a personal
review and consideration of the facts concerning this Agency's employment
of Jun i Ran., I have determined that, when he appears in Court on
April 28, 1966 for the purpose of giving testimony in this case, he must
respectfully decline to answer questions which would elicit information
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that relates to intelligence sources and methods and which I have
prohibited from disclosure pursuant to the provisions of
50 U. S. C. 403g.
The United States through its attorney, has objected and still
objects to the disclosure of any information relating to Mr. Raus'
employment by this Agency that Mr. Raus has been instructed not to
disclose. Disclosure of such information would be contrary to the
interests of the United States in protecting the security of its foreign
intelligence activities.
I am instructing Mr. Lawrence R. Houston, General Counsel
of the Central Intelligence Agency, to appear personally in Court
on behalf of the Agency on April 28, 1966 to assist in protecting
information relating to intelligence sources and methods. Mr. Houston,
will, of course, be accompanied at the hearing by attorneys for the
United States who will assert the Government's claim of privilege with
respect to the matters referred to above.
For the reasons stated above and for the purpose of effectuating
the duties imposed on the Central intelligence Agency by
Section 403(d) of Title 50, United States Code. I consider that
the compulsory disclosure of further information relating to
intelligence sources and methods would be contrary to the security
interests of the United States. Accordingly, pursuant to the
2
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authority vested in me as Director of Central Intelligen.ce, I formally
assert the Privileged status of such information and must respectfully
decline to permit its disclosure.
APriL21,1966
3
W. F. RABORN
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Fort13, SKEENS 8c RA.SIKA.IISICA.S
ATTORNEYS AND COUNSELLORS AT LAW
910 SEVENTEENTH STREET, N. W.
WASHINGTON, D. C. 20006
PHONE [phone]
Office of the Clerk
United States District Court
Post Office Building
Baltimore, Maryland 21202
DISTRICT OF COLUMBIA BAR
April 26, 1966
Attention: Mr. Wilfred W. Butschky
Re: Eerik Heine v. Jun i Raus
No. 15952, Civil Docket
Dear Sir:
CHARLES N. FORD
EDWARD J. SKEENS
ERNEST C. RASKAUSKAS
MARYLAND BAR
EDWARD J. SKEENS
ERNEST C. RASKAUSKAS
VIRGINIA BAR
CHARLES N. FORD
EDWARD J. SKEENS
Kindly file on behalf of plaintiff the enclosed
Supplemental Memorandum of Points and Authorities In
Opposition to Defendant's Motion for Summary Judgment.
Yours very truly,
Ernest C. Raskauskas
ECR/fhr
Enclosures/mentioned
cc: Paul R. Connolly, Esquire
E. Barrett Prettyman, Jr., Esquire
Robert J. Stanford, Esquire
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FORD. SKEENS &
RASKAUSKAS
ATTORNEYS AT LAW
910- I 7TH STREET. N. W.
WASHINGTON. 0. C. 20006
296-4272
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
tERIK HEINE
Plaintiff
vs. Civil Action No. 15952
JURI RAUS
Defendant
SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Comes now the plaintiff by and through his counsel of record,
Ernest C. Raskauskas and Robert J. Stanford, and respectfully
toves this Court to enter an Order forthwith denying Defendant's
Motion for Summary Judgment on the ground that there remain mate-
ial facts which are actually and in good faith controverted,
nd upon the further ground that the first, second and third
fidavits filed by Richard Helms, Deputy Director of Central
ntelligence, in support of Defendant's Motion for Summary Judg-
ent, do not meet the testimonial requirements of Rule 56(e), and
or reasons in support of this Motion plaintiff urges as follows:
1. The Memorandum and Points and Authorities filed by
?laintiff herein on February 23, 1966, in opposition to Defendants
tion for Summary Judgment is incorporated herein by reference
nd reuzged upon the Court.
2. The first, second and third Affidavits of Richard Helms,
eputy Director of Central Intelligence, filed in support of
efendant's Motion for Summary Judgment, do not meet the testi-
onial requirements of affidavits under Rule 56(e), and said
fidavits are supp9?1tItious, conclusory, and said Affidavits
surp the function of the Court and jury and resolve the ultimate
act as to Whether or not defendant was acting within the course
nd scope of his employment as a Government official when he
landered the plaintiff. Moreover, in the second Affidavit
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FORD, SKEENS &
RASKAUSKAS
ATTORNEYS AT LAW
910- t 7TH STREET. N. W.
WASHINGTON. D. C. 20006
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executed by Richard Helms on April 1, 1966, he directs defendant
to make no further disclosures concerning his employment by the
Agency or relating to this case, and he reaches the judgment on
behalf of the Agency that it would be contrary to the security
interest of the United States for any further information pertain-
ing to the use and employment of the defendant by the Agency in
connection with the plaintiff to be disclosed. Accordingly, the
Affidavits of Richard Helms cannot be considered since neither
he nor the Affidavits are susceptible of cross-examination or any
discovery whatsoever, by his own statement in the second AffidavitY
and therefore said Affidavits must be stricken under the rule
enunciated in Banco de Esrana v. Federal Reserve Bank of New York
(CCP. 2d, 1940) 114 F2d 438, 445.
3. In his Notion for Summary Judgment, defendant has the
burden of conclusively showing that there are no triable issues
of fact, and under the authority of the United States v. Diebold
(1962) 369 US 654, 655 82 SCt 993, 8 L ed 2d 176, the Court is
under a duty to give defendant's papers the most careful scrutiny
and to indulgently regard those filed by the plaintiff. In the
cited case, the Supreme Court held that "on summary judgment the
inferences to be drawn from the underlying facts contained in
such materials must be viewed in the light most favorable to the
party opposing the motion."
4. Plaintiff contends that the defense of "official immunity"
like any other defense, must not only be pleaded but also must be
proven. Under Barr V. Matteo, 360 US 564, 3 Led 2d 1434, 79SCt
1335, certain, at least general, standards have been established
as qualifications for this defense.
a) Status as Federal Officer. Defendant must establish that
he was acting as a federal officer. It must be remembered that in
Barr, the defendant was the Acting Director of the Office of Rent
Stabilization. In the instant case, from the pleadings and
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RASKAUSKAS
ATTORNEYS AT LAW
et 0.17TH STREET. N. W.
WASHINGTON, D. C. 20008
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ffidavits filed on behalf of defendant, there is more evidence
rom him that he was a "casual contact," a "contract worker" or
n "informer" for the C.I.A., rather than an officer of said
ency. In his memorandum filed on January 13, 1965, he asserts
hat "He possesses no financial resources other than his job."
n his affidavit filed the .same day, he states under oath that
is exclusive income is. as an employee of the Bureau of Public
oads of the Department of Commerce in Washington, D.C., at an
annual gross salary of $10,605, and as a Captain in the United
States Army ReserVe with pay of approximately .$1,000 per year.
IFurthermore, in the second affidavit filed by Mr. Helms on April 1
1966, he states that the C.I.A. has employed Raus "from time to
time--concurrently with his duties on behalf of the Bureau of
Public Roads--to carry out specific assignments on behalf of the
Agency." Therefore, testing the status of Raus under the very
papers which he has filed, there is a material and substantial
question presented as to his status as a federal officer. The
Court is requested to take judicial notice of the fact that num-
erous governmental agencies use paid and unpaid informers, such
as those used by Internal Revenue Service, Customs, in narcotics
prosecutions, by the F.B.I., in deportation proceedings and the
like, none of which individuals are dignified or characterized as
"Federal Officers or Employees" by virtue of their employment
with certain Federal agencies. In addition, the Court is requeste
to take judicial notice of the fact that many Federal agencies
have contract workers for such varied functions as custodial and
cleaning contracts to the making of surveys and special studies.
None of these individuals are classified as Federal officers or
Employees. In conclusion on this point, plaintiff contends that
the available evidence on the status of the defendant as a C.I.A.
employee preponderates against him for such a finding, and that
further discovery by deposition scheduled of the defendant, will
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conclusively show that he was not an employee within Barr v. Mateo.'
b) Scope of employment and statutory authority. Assumin
for purposes of argument that defendant was a federal employee with
the C.I.A., and assuming further that he was instructed to slander
he plaintiff, nevertheless, defendant's action can be made the
sis of a suit against him, if such action is beyond the statutory
uthority of the Agency, even though within the scope of defend-
nt's authority. And further, defendant's actions, if otherwise
"ustified must not be exercised in a manner that is constitution-
lly void. Ducan v. Rank 83 SCt 999, 372 U.S. 609, 10 LEd 2d 15.
In this case, defendant Raus stated on each of the three occai
ions complained of, that he was uttering the slanderous remarks
n the basis of information obtained by,:-himl.from the F.B.I., as
evidenced by the affidavit of August Kuklane, heretofore filed on
ebruary 23, 1966. By what statutory authority does the defendant
or the C.I.A. attribute the statements of the defendant to the
.B.I. They can -- by none. Shortly after the first public
accusation by Raus against Heine on November 9, 1963, when Raus
called Heine a KGB agent and stated that the F.B.I. was the source
of the information, Heine's Canadian barrister wrote to the F.B.I.
and received a copy of the letter attached hereto as Exhibit"A,"
over the signature of J. Edgar Hoover, and dated December 18, 1963
assuring Heine's barrister that the "Bureau has not released any
information which could be the basis for the alleged charges
against him." Hoover's letter then repudiates Raus' statement
that the F.B.I. was the source of the allegations, and the positio
of the F.B.I. is clearly stated in a further letter which Raus
circulated in the Estonian community after April 6, 1964, wherein
a copy of a letter from J. Edgar Hoover to Raus of the same date,
attached hereto as Exhibit "B," and the authenticity of which has
not been established by plaintiff, the Director of the F.B.I.
stated the information contained in the files of the F.B.I. "is
?4?
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ATTORNEYS AT LAW
910.17TH STREET. N. W.
WASHINGTON. D. C. 20006
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available for official use only." Apparently this was not the
only correspondence between the defendant and the F.B.I., since
on May 10, 1963 (the month during which Raus signed the secrecy
agreement with the C.I.A.) the defendant received a letter and
irculated copies of the same in the Estonian community, from the
irector of the F.B.I., an ,unauthenticated copy of which is
It
attached hereto as Exhibit "C."
Accordingly, it is obvious that defendant was slandering a
ero of the Estonian community, the plaintiff, and his only hope
of success was to trade on and use the high, long-established and
impeccable reputation of the F.B.I. If Raus was a C.I.A. agent,.
why was it necessary for him to write letters of inquiry to the
F.B.I. in April of 19647 From whence the statutory authority of
the defendant or the to slander in the name of the F.B.I.?
The defendant has remained silent to this question. Furthermore,
under Title 50 U.S.C. A. ?403(d)(3), it is specifically "Provided,
That the Agency shall have no police, subpoena, law-enforcement
powers, or internal-security functions;" and the Federal Civil
Defense Act of 1950 limits "investigations of espionage, sabotage,
or subversive acts" exclusively to the F.B.I. 50 U.S.C. A.2263.
Therefore, in conclusion on this point, plaintiff contends that
the available evidence on the statutory authority of the Agency
and the scope of defendant's legitimate authority preponderates
against the defendant as being a governmental official or employee
acting within the scope of his statutory authority, and that furth r
discovery by deposition scheduled of the defendant, will conclu-
sively show that he did not act within the outer primeter of any
statute as required by Barr v. Matte?.
5. In the third Affidavit filed by Richard Helms, Deputy
Director of Central Intelligence, on April 22, 1966, he carefully
states that "the defendant, in a series of conferences, was
?5?
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furnished information by the Central Intelligence Agency to the
Lffeet that Eerik Heine was a dispatched Soviet intelligence
perative, a KGB agent." (emphasis supplied) This Affidavit does
.ot state that plaintiff is or was a KGB agent, but states only
hat defendant was furnished information "to the effect" that
ieine was a KGB agent. Rumors and suspicions would constitute
nformation "to the effect." Thereafter, the Affidavit states
hat "defendant was instructed to warn members of Estonian emigre
roups that Eerik Heine was a dispatched Soviet intelligence oper-
tive, ?a KGB agent." Therefore, these allegations were based on
umors and suspicions, as borne out by a copy of the attached
letter from the defendant to one Meeme Malgi, a copy of which in
the Estonian original is attached hereto as Exhibit "D" together
with the English translation and the letter of transmittal from
said Malgi to counsel for the plaintiff.
The third Affidavit of Helms further details that the purpose
f the instruction to defendant Raus was "to protect the integrity
of the Agency's foreign intelligence sources existing within or
eveloped through such group." However, on all of the occasions
omplained of, the statements were made to groups and individuals
iehin the continental United States, and therefore within the
exclusive jurisdiction of the Federal Bureau of Investigation.
d if Heine, who traveled throughout the United States in 1963
and 1964 (Heine deposition pp. 29-31) was and is a KGB agent, he
ould have been stopped at the Canadian border and not admitted
as an alien or Canadian citizen, or he could have been arrested
once he crossed into the United States as aNGB agent, the
fact of which would rendered him in violation of multiple
under the U.S. Code. Why was not the F.B.I. requested to
very
offenses
take
him into custody by the C.I.A. The inference from the facts is
irresistible -- that there was not enough evidence even for an
indictment let alone a connection -- and at least an indictment
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WASHINGTON. D. C. 20006
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Tould have given plaintiff an opportunity for vindication. There-
ore these slanders against plaintiff were part of a deliberate
nd calculated design to destroy without proof, and no agency has
ver been given such powers by statute in the history of the
nited States, unless it is ruled herein that the C.I.A. has.
In addition, the third Affidavit of Richard Helms, as vague
nd as ambiguous, as the first two, also continues to make ulti-
te conclusions which invade the province of the Court.
All of the Affidavits assert enigmatically but imperiously
the alleged purpose of the statements but no facts are given to
support the conclusion. A reading of Helms' third Affidavit does
ot reveal whether the "statement of purpose" is the considered
opinion of the person who instructed Raus to make the slanderous
remarks; the gratuitous self-serving assessment of the affiant;
or the exculpatory utterance of the defendant Raus.
The third Affidavit of Helms is further deficient in its
statement in paragraph 2 that "the defendant was instructed to
Fwarn members of the Estonian emigre groups that Eerik Heine was
a dispatched Soviet intelligence operative, a KGB agent." We are
not told the position or the authority of the person who instructe
Raus or, in fact, that such instruction came from the Central Inte
ligence,Agency. This gross omission must be considered in the
light of the fact that the Affidavit filed April 25, 1966, is the
third sworn statement of Richard Helms. We must infer from this
fact alone that it was drawn with Machiavellian cleverness, mas-
sive cunning, and calculated expediency.
It must be concluded, therefore, that if the Central Intelli-
gence Agency could have said that it instructed Juni Raus to utter
the slanderous remarks set out in paragraphs 5, 6, and 7 of the
plaintiff's complaint, it would have specifically so stated. The
latest Affidavit goes down for the third time, drowning in its own
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FORD. SKEENS &
RASKAUSKAS
ATTORNEYS AT LAW
610.17TH STREET. N. W.
WASHINGTON. D. C. 20006
296-4272
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uplicity, utterly failing to set forth essential facts upon which
he defendant's Motion can be considered.
6. In the Second Defense of both the original and amended
swers filed by the defendant, he "admits having spoken to one
August Kuklane...on an occasion earlier than those specified in
paragraphs 6 and 7 of the complaint.... However, he denies making
the statements attributed to him as specified in those paragraphs.'
Plaintiff contends that this denial as contained in the Second
efense constitutes a justiciable issue and is certainly not in
ccord with the Affidavits filed by Richard Helms, who states
that defendant was authorized to make the statements Which defend-
ant has denied making.
7. On the question of waiver of the defense of absolute
immunity, heretofore urged by plaintiff in his pleadings filed on
February 23, 1966, and March 31, 1966, plaintiff respectfully re-
urges upon the Court the points raised in said pleadings, and
further requests the Court, in the light of the three Affidavits
filed by the C.I.A. through Richard Helms, to consider what pos-
sible prejudice to national security, what excuse or mitigating
circumstance other than the intrinsic and inordinate worship of
secrecy justified a delay of more than one year in asserting this
defense, which is still shrouded in secrecy and unproven.
the Agency may be the arbiter of whether it will assert a
defense through a defendant, it is within the province of
Court to determine whether said defense was timely filed.
there has been no justification for the delay, except the
While
given
the
As yet,
claimed
lack of permission, which itself has not been explained or justi-
fied. The exclusive and sole basis for delay asserted by defend-
ant is through the testimony of one of his defense counsel (pp.
66-71, Tr. Hearing of March 11, 1966) that in a discussion with an
attorney at the C.I.A., defendant's counsel were not given
-8-
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FORD. SKEENS &
RASKAUSKAS
ATTORNEYS AT LAW
9I0.17TH STREET. N. W.
WASHINGTON. D. C. 20006
296.4272
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rmission to raise the defense of absolute immunity. No reason
Justification other thannsecrecy was asserted. Yet, in the
ame hearing the same defense counsel admitted that there had been
o change in the secrecy law respecting the. Central Intelligence,
t now the defendant is able to assert this defense and attempt
o buttress it with three successive Affidavits by the Deputy
Director of the Agency. The Court and the plaintiff are entitled
to .a. more substantial showing.
8. Secrecy is not a defense. It can neither be used as a
sword against the plaintiff nor as a shield by the defendant.
Under U.S. v. Reynolds, 345 US 1, 97 L ed 727, 73 S Ct 528, 32 ALR
2d 382, the claim of privilege against revealing secrets must be
formally invoked by the government and not by the defendant as
herein in his Motion for a Protective Order, and the claim must be
formally lodged by the head of the Agency after his actual personal
consideration. Thereupon, it is for the Court to determine whether
the circumstances are appropriate for the claim of privilege, but
without requiring disclosure of the very matter sought to be pro-
tected. Therein lies the difficulty and Reynolds analogizes the
determination by the Court with the one invoking the privilege
against self-incrimination. However, as in self-incrimination the
defendant can either say everything or nothing, about those
matters where secrecy is pleaded. The three successive Affidavits
of Mt. Helms, each giving a little more, give substance to the
rationale of Reynolds where Chief Justice Vinson said "Judicial
control over evidence in a case cannot be abdicated to the caprice
of executive officers."
In conclusion, while the government upon sufficient showing
may be able to claim and sustain a privilege with respect to
secrecy, and the Court may limit or preclude plaintiffss discovery
on that account, none of this is of any benefit to defendant,
?
lo
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FORD. SKEENS &
RASKAUSKAS
ATTORNEYS AT LAW
SI 0-17TH STREET. N. W.
WASHINGTON. D. C. 20006
296-4272
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because the plaintiff has made his allegations and is ready to
prove them, while the defendant has asserted nine separate
defenses, none of which he offers to prove, even the defense of
"official immunity" which would spare him the onus of trying this
case on the merits.
Respectfully submitted,
,? iv (- k,
Ernest C. Raskauskas
1418 Ray Road
Hyattsville, Maryland
202 296-4272
Robert J. Stanford
10401 Grosvenor Place, Suite 1314
Rockville, Maryland
202 296-8870
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
Copies of the foregoing Supplemental Memorandum of 1:4o=.-cs
and Authorities in Opposition to Defendant's Motion for Sy
Judgment and annexed exhibits were mailed, postage prepaid, this
26th day of April, 1966, to Paul R. Connolly, Esquire, Hogan &
Hartson, 815 Connecticut Avenue, N.W., Washington, D.C. 20006
and E. Barrett Prettyman, Jr., Esquire, Hogan & Hartson, 813
Connecticut Avenue, N.W., Washington, D.C. 20006, attorneys for
defendant.
L
? /
Ernest C. Raskauskas
Robert: J. Stanford
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Next 7 Page(s) In Document Exempt
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EERIK HEINE
vs.
JURI RAUS
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
?
Civil No. 15962
TRANSCRIPT OF PROCEEDINGS
April 14, 1966
FRANCIS T. OWENS
Official Reporter
514 Post Office Building
BALTIMORE 2, MARYLAND
SAratoga 7-7126
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000100100001-2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
EERIK HE INE
vs.
JURI RAUS
Civil No. 15952
Baltimore, Maryland
Thursday, April 14, 1966
The above-entitled matter came on for hearing
before His Honor, Roszel C. Thomsen, Chief Judge, at ten
o'clock a.m.
APPEARANCES
For the Plaintiff:
HI. ERNEST C. RASKAUSKAS
MR. ROBERT J. STANFORD
For the Defendant:
MR. E. BARRETT PRETTYMAN, JR.
Also present representing the United States
Government, Mr. Thomas J. Kenney, United States Attorney;
Mr. Kevin T. Maroney, Attorney, Department of Justice.
?Vi?
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9
- PROCEEDINGS
???
THE COURT: Mr. Prettyman, suppose you tell
me what are the matters that we have here for decision
today before I hear from the other side.
MR. PRETTYMAN: We have still pending, Your
Honor, our motion for summary judgment. That, of course,
has been countered by Mr. Raskauskas7 motion to strike our
amended answer, which is also before you.
We filed a motion to file an amended answer.
Your Honor granted it, and they have now moved to strike it,
and you said
that you would consider that today.
THE COURT:
All right.
MR. PRETTYMAN: Then finally we would like to
take up today, in
date set for Mr.
protective order
view of the shortness of time before the
RO:aatkas deposition, our motion for a
in regard to that deposition.
Now, Your Honor, before introducing the
representatives from the United States who are here, I might
say an introductory word in view of your
last hearing in regard to the assertions
counsel for the defendant.
This is an unusual case, of course. In the
normal case where the defendant is an employee of the
United States he requests the United States to represent him,
comments at the
oJ
made,1,1 private
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and Government counsel speak for him from the outset. Here
the defendant could not do that because he was not even
allowed to show his Government connections at the outset of
the case, as indicated by my testimony at the last hearing.
Consequently he had no choice but to employ
outside private counsel. We still represent the defendant,
of course; but today one of the reasons for requesting this
hearing was so that we could have a statement on behalf of
the United States as to their interest in the matter and
the position of the United States.
In the courtroom is Mr. Kenney, the United
States Attorney, whom you know, and Mr, Kevin Maroney, who
? is chief of the Appeals Section of the Internal Security
?
Division of the Department of Justice, and with your
permission, Your Honor, I would like him to make a statement.
THE COURT: Is Mr. Raus here today?
MR. PRETTYMAN: No, sir, he is not.
THE COURT: Well, maybe we ought to hear from
the other side first. Well, I guess the other side would
like to hear, the plaintiff would like to hear the whole
thing that the defense has to say before answering.
So Mr. Kenney, do you want to make a statement
of the Government's position?
MR. KENNEY: Yes, Your Honor.
would like to represent to the Court that
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4
Mr. Maroney and 1 appear here today at the personal and
expressed direction of the Attorney General, and we are
? authorized to represent to the Court on behalf of the
?
?
United States that we believe that the facts that are set
forth in the affidavit are correct and true.
The Attorney General does not desire to make
it affirmatively appear one way or the other that he or the
Department of Justice necessarily approves of what was done
here, but we believe that this man was an employee, and that
he made the statements that are set forth in the affidavit
that are in issue here in the furtherance of his duties.
THE COURT: You say he made the--
MR. KENNEY: The defendant.
THE COURT: You mean Mr. Raus?
MR. KENNEY: Yes.
THE COURT: Made the statements referred to
in Mr. Helms 1 affidavit?
MR. KENNEY: That is correct, Your Honor, as
part of his duties; and further that if he had requested
government counsel initially, if it had not been the unique
kind of case that it is, that in all probability the
government counsel would be asserting here the defense of
absolute privilege as his private counsel are.
Mr. Maroney, is that a fair statement?
MR. MARONEY: Yes, sir.
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it?
of Justice?
5
THE COURT: Is Mr. Maroney--how do you spell
MR. MARONEY: M-a-r-o-n-e-y.
THE COURT: And you are with the Department
MR, MARONEY: In the Department of Justice.
THE COURT: What is your full name, sir?
MR. MARONEY: Kevin T.
MR. PRETTYMAN: Your Honor, before the
plaintiff speaks perhaps it might be helpful if I summarized
the situation as I now see it, so he would have something
quite clearly to address himself to.
411 THE COURT: Well, let me just ask them one
?
thing, whether they agree that the points before the Court
or the matters to be decided are the defendants motion for
summary judgment, the plaintiff's motion to strike the
amended answer, and the defendant's motion for a protective
order re the deposition?
I guess they would come up in the inverse
order because the motion for the summary judgment would be
the last thing to be heard, and the Court is not going to
grant a summary judgment until all preliminary matters have
been cleaned up, certainly, and if they are not cleaned up,
well, then, summary judgment could not be entered.
Is that your understanding of the situation?
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6
HR. RASKAUSKAS: Yes, Your Honor.
We expected in accordance with the tenor of
your letter concerning the hearing today that we would
first consider the motion to strike the order to amend the
answer.
first.
THE COURT: Yes, that is going to be done
MR. RASKAUSKAS: And secondly, we would
consider the summary judgment motion and ascertain whether
the Court is going to deny the motion without prejudice, as
we discussed it in the last hearing, and require, the
defendant to file a new motion, or just how that summary
motion was to be treated.
Now, we did not expect today that we would
argue the merits of the summary judgment motion.
Our understanding was that we would ascertain
the procedural posture of this motion, and finally, although
we just received the motion for a protective order by the
defendant, we are prepared to have a hearing on that motion
respecting the discovery today.
THE COURT: All right.
MR. RASKAUSKAS: And 1 might add one more
thing, Your Honor, that I think we have to object to the
statements made and request the Court not to consider any
statements made by these distinguished gentlemen from the
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7
Department of justice.
I think that if they are going to involve
themselves in this case they should enter an appearance
formally and participate as counsel. Now, I really cannot
understand how these gentlemen are cast today.
THE COURT: Well, I think their cast today
was that I was unwilling at the last hearing to allow a
defendant in the case, who says he is a government employee,
and who evidently was?nobody disputes that he was employed
by the Government in some capacity?to claim this privilege
in view of what had been previously entered in it because I
felt that it was important to know the position the
Government took in the matter0
mean, a man can always claim--if anybody can
claim that privilege you have got to have a hearing on it,
and you have got to do something about it.
If the Government claims it it may become just
absolute, and that is what I think your problem is.
Now, if the Government, Mr. Xenney is
appearing here and making a statement in court for the
Government, you can't sue, you say they ought to appear as
? attorney, and I am not quite sure in what capacity.
MR. RASKAUSKAS: Well, Your Honor, the fact
as
of the matter is that/I respectfully view this situation is
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8
that Mr. Kenney has now made a statement and has submitted
information to the Court, no appearance with the Court, and
he may withdraw now, and we have lost any opportunity we
have to inquire into this matter, and all he has done is
made a statement.
THE COURT: No, I am willing to allow you to
inquire as far as you may properly do0 I have not made
any determination of what may be done.
What I wanted to do was to have the United
States appear, whether as amicus curiae or on behalf or
along,associating themselves with this claim and get a
statement of the facts from the United States.
Now, the United States can, in a sense it is
intervening, and maybe Mr. Kenney and Mr. Maroney would
clarify what their position is,
have not made any decision as to what their
and
position is,/before the Court considers what has been done
want Mr. Kenney and Mr. ?Maroney to tell me exactly what
position they are taking in the case.
Now, they can be simply coming there are
various possibilities. They may be intervening on behalf
of the United States to assert this privilege, which is
perhaps the way it has been done. They may come in as a
kind of witness brought in by the defendant in support of
his amended answer or in support of his right to file the
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amended answer, and in that event the Court pretty much
insisted that he go that far, and that the Court wanted to
know the position of the United States on this amended
answer so that you would be protected against--not that I
intimate there was any--against a fraudulent claim of
privilege.
Now, as I say, anybody can say, "I claim the
privilege," and if that stops the case we have a' bad
situation.
If a man is claiming absolute privilege, the
Court told Mr. Prettyman that I was not willing to accept
just an affidavit without a certification, but he just
produces an affidavit which he says is a signature of a man
whom he said if I read the Congressional Record or the
Washington Post or something else I would know he was a very
important gentleman, and I said I was not willing to take
that sort of evidence.
But when the United States Attorney and the
Department of Justice come in and bring a certificate which
they say is signed by the head of the agency or somebody
who is a delegate of the head of the agency, the Court then
is able to accept or is justified in accepting statements
which I would not otherwise have been justified in accepting.
So I do not know whether the Government is here
as a representative of the defendant, as intervening--well, I
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?
?
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do not mean representing, but at the request of the
10
attorney for the defendant and as part of the defense or
whether they are intervening in the case to assert this
position, or waether they are coming in as amicus curiae
to the extent that the Court has invited them in to make
clear whether there is a proper basis for this contention.
Now, I will be glad to near from them.
MR, RASKAUSKAS: Yes. Of course, we are
very glad to see these gentlemen, out we were concerned
about as far as clarification is concerned as to how they
are in this matter.
THE COURT: Yes.
RASKAUSKAS: In this case.
THE COURT: I think Mr. Kenney ought to
clarify that as soon as he and Mr. Maroney have a discussion
on it.
MR, UNNEY: If Your Honor please, it was not
our intention to intervene in this case. We appeared
simply as amicus to assure the Court and to represent to
the Court that the United States of America tells the Court
that this man was an employee and that the facts set forth
in the affidavit are true, and that if we were representing
? him we would be following the same proceedure.
THE COURT: Well, what it is, what it
amounts to is that the Government at the invitation of the
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11
Court comes in and states this position, and it is now
affirmatively stating that they have authorized and in fact
are directing the defendant to take this position, that
they are authorizing him to claim privilege and directing
him not to go beyond that.
Isntt that what it comes to?
MR. KENNEY: That is correct, Your Honor.
The only qualification I make to it is this: That the
Attorney General approves the plea of privilege here and
thinks it is well-pleaded. Let us put it that way.
THE COURT: Well, that is amicus curiae when
you tell me that. That is what that is.
MR. KENNEY: Well, that is ultimately for the
Court to decide.
THE COURT: That is right.
MR, KENNEY: I am only expressing our opinions
about the matter.
THE COURT: That is right.
MR. KENNEY: But the Attorney General simply
wants it made clear that although he is approving the legal
aspects of this thiug he is expressing no opinion one way or
the other as to whether he approves or disapproves the
conduct of the defendant. That is something between the
CIA and--
THE COURT: And the defendant, yes.
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MR. KENNEY: And the defendant.
THE COURT: Yes.
MR. PRETTYMAN: Now, I think it might be
helpful if I can summarize briefly where we are at least
in our view now; and secondly, to address myself to their
motion.
The defendant personally raises and asserts
the defense of absolute immunity, and that absolute
immunity comes about for two reasons: First of all, he
was a government employee at the time that the statements
were made; and secondly, he made the statements in the
course and scope of his employment.
The Government has taken the position that
the facts as to employment and scope of employment are true,
and it in turn raises a privilege itself, a kind of
ancillary privilege as to the release of further information
other than that which has already been divulged in the
various pleadings.
Now, our position at this stage is that the
Court has before it all of the facts and undisputed facts
that it needs on a motion for summary judgment.
Undisputed on this record is proof of
employment and the proof that the man acted within the
scope of his duties, and under those circumstances, under
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13
the cases which we have already cited to Your Honor, and
particularly mentioned the Lyons case.
THE COURT: Which one?
MR. PRETTYMAN: The Howard v, Lyons, Your
Honor, Howard v. Lyons. That is 360 U.S. 593.
You may recall that is the case where the
Navy captain, the Commander of the Boston Navy Yard wrote
a derogatory letter and sent ic not only within the Navy
but also to the Massachusetts Delegation and then to the
newspapers, and his superior merely filed an affidavit
saying that the man was acting within the scope of his
duties, and chat was accepted and summary judgment was
granted.
Now, it is our position that that is precisely
the situation that we have here and that summary judgment
is clearly called for,
Addressing myself then to the motion which the
plaintiff has filed to strike out the amended answer, Your
Honor has indicated at the last hearing that he would look
favorably upon the filing of a motion to file an amended
answer, and we filed that motion, and Your Honor granted
it, and now they have moved to strike.
First they claim that there was undue delay
in the filing of our motion. Of course, we never conceded
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that we did not adequately plead the first time; but
14
assuming that we did not, the delay clearly was not of the
defendant's own doing.
The reason for the delay clearly appears from
the pleadings. The interest of the United States was at
stake in this case.
The gentlemen in the Government who have the
responsibiiit for deciding these matters apparently had
a balancing of interest which they had to consider. They
apparently made the decision that because of the security
interests of the United States this man's affiliation with
the agency and the facts behind what has happened simply
could not be revealed at that time.
That was not of the defendant's doing; he had
no choice; he was bound by law; he was bound by statute; he
was bound by a secrecy agreement; and he would have been
subject to criminal prosecution if he had revealed
unilaterally at that time his government connection and the
facts as he knew them.
Clearly the so-called undue delay is
explained by this record.
We are accused of bad faith. It is said
that we misled the Court because of a claim of poverty.
The defendant's claim of poverty was absolutely true.
There has been no showing whatever as to who paid for
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15
whatever investigation might have transpired. There has
been no showing that this man has funds which he did not
reveal to the Count. And I assert to you that there is
nothing in the record and nothing in fact that contradicts
his claim of poverty.
Parenthetically there is a statement that the
plaintiff's wife was harassed, and I can assure you
absolutely that she was in no way harassed during the
course of a normal investigation.
It is asserted in this pleading that--
THE COURT: Whom did you say was harassed?
I am not quite clear about chat.
MR. PRETTYMAN: There is a claim, Your Honor,
that during the course of investigation that the plaintiff's
wife, while the plaintiff was here in laashington having
his deposition taken, was harassed.
The truth of the matter was that the
investigators went to see her to see if she had anything to
say about the case. She was in no way harassed.
THE COURT: Well, who was the investigator?
MR. PRETTYMAN: There were, I believe, two
111 gentledien, Your Honor. One was a Mr. Lavinia, and I am
sorry to say I do not recall the other gentleman's name.
THE COURT: Were they investigating, you say
they were government employees?
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MR. PRETTYMAN: No, sir.
THE COURT: Were they independent contractors?
MR. PRETTYMAN: Yes, sir.
Now, a statement is made in here that the
defendant attempted to buy off the plaintiff. In my
eleven years of practice I have never encountered an
assertion that the normal attempts at negotiating
settlements between counsel has been characterized as an
attempt to buy off any party.
There were informal discussions repeatedly
between counsel in our office, in their office, over the
telephone, about the possibilities of settling this case.
We having the interest of our client at stake obviously
were interested in a settlement if it could be worked out
so that our man would not have to reveal things which we
felt might be against the interest of the United States.
These discussions were informal.
We
thought that they were carried on in a friendly manner.
There was the usual joking and joshing that goes on in these
discussions; and to characterize what happened as an
attempt to buy off the plaintiff, I think, is outrageous.
It is comparable to saying that the plaintiff attempted to
sell out his client by negotiating for a settlement or that
he attempted to buy off the United States by dealing with
us in negotiations toward settlement.
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17
1 categorically deny the statement as to why
the negotiations broke dawn. The negotiations broke dawn
because we could not sanction any settlement that gave this
man any excuse, even an implied one, to claim that he had
been given some kind of approval.
1 categorically deny that I intimidated
counsel on the ocher side, as is stated in this motion.
Counsel refers to the fact that--
THE COURT: Well, I will hear from them as to
what their position is as to whether they controvert your
statements as to whether they think it is material. You
say that it is immaterial, and secondly, if material, is
untrue,
MR. PRETTYMAN: And outrageously asserted,
certainly do.
Now, they refer to the dilatory motives here,
They say that the defendant made an election as to not to
plead this absolute immunity,
He did not have an election; he did not have
a choice; he was bound by law to silence, and the choice
was made by those officials in Government to whoa the
responsibility is given for making such decision.
Now, in the balancing of interest that the
officials had to consider, apparently at some point they
decided, I would guess, because of the lengthy interrogatories
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filed, but I do not know, that they made the judgmental
decision that the balancing of interest had shifted and
that it was now incumbent upon them to make at least a
sufficient revelation of the facts so that absolute
immunity could be pleaded, which is precisely what they
did.
They say that there was undue prejudice to
the plaintiff. The only prejudice wnich they referred to
is an inconvenience in terms of the taking of his
deposition.
This is not undue prejudice; this is the type
of inconvenience which is normal to the discovery process
in every lawsuit.
The argument that there is no privilege where
the defendant had a choice of whether or not to slander
someone, that argument, of course, would wipe out every
governmental immunity suit because in every one the
government employee presumably has a choice to make as to
whether he will make a statement,
That is not the law. The law is that if the
man makes the statement, whether he had a choice or not,
if he makes the statement in the course of his employment
and within the scope of his duties that he is thereupon
absolutely privileged to make it.
Finally they say that the defense is simply no
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longer available. There is a bare assertion in this
pleading that the statements were not related to the
defendant's duties but rather that they were made to
destroy the plaintiff.
That is totally unsupported and is untrue;
all the evidence here is directly to the contrary.
THE COURT: No.
MR. PRETTYMAN: As Mr. Helms' affidavit shows
the statements were made because this man was directed to
make them. They were related to his duties.
THE COURT: Well, it now appears so.
MR. PRETTYMAN: Yes, sir, that is correct.
THE COURT: But from the papers which said
he was merely an employee of the Bureau of Roads, it was not
so apparent. That is one reason why I wanted to get into
the record whether he was indeed acting under the directions
of CIA.
MR. PRETTYMAN: I understand.
They say here in the same part that the
Government immunity applies only where the plaintiff, and
I am quoting them:
"Innocently and inadvertently made a statement."
Well, now, of course, the rule is otherwise.
The statement can be deliberate; it can even be made with
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malice, as the Garrison case shows.
THE COURT: Wait a minute. The Garrison
case?
MR. PRETTYMAN: Pardon? I am sorry. I did
not hear Your Honor.
THE COURT: The Garrison case. I do not
carry these cases in my mind. I suppose they are somewhere
in the papers.
MR. PRETTYMAN: Let me cite it for Your Honor.
THE COURT: They are in the papers somewhere,
but I would like to be sure that I have it.
MR. PRETTYMAN: Garrison vs. Louisiana, 379
U.S. 6/4.
THE COURT: All right.
MR. PRETTYMAN: At page 74, the Court said:
"That federal officers enjoy an absolute
privilege for defamatory publication within the scope
of official duty, regardless of the existence of
malice in the sense of ill-will."
Now, there is no malice here. I want that
made clear that I am not saying this man spoke with
malice.
THE COURT: There is an allegation of malice,
MR. PRETTYMAN: Pardon?
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THE COURT: There is an allegation of malice,
MR. PRETTYMAN: As a matter of fact, I am
not sure there is, Your Honor.
THE COURT: Isn't there?
MR. PRETTYMAN: I will have to check that to
be sure.
THE COURT: Well, I thought you said he did
it in order to, I thought you said that the contention was
that it was not related to his duties but was made to
destroy the plaintiff?
MR. PRETTYMAN: Well, contention in this
current pleading, but I would have to look back at the
complaint to make sure. I do not recall that the complaint
alleged that, malice.
THE COURT: All right.
MR. PRETTYMAN: I will check that.
THE COURT: All right.
MR. PRETTYMAN: Well, in summary we dispute
first, of course, all of this pleading, and most of it we
feel is totally irrelevant. We think that the reason for
the delay appears as clearly as it can under the
circumstances from the affidavits that have been filed.
There has been no statement by the United
States as to precisely why this delay occurred, but that is
because it was within the administrative decision of the
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people to make it.
THE COURT: I understand.
MR. PRETTYMAN: Of the people who have the
security interest of the United States at heart.
Naw, Your Honor, I just want to make one thing
clear at the end. There has been a statement published in
an Estonian newspaper in New York by friends of the
plaintiff which indicates that somehow or other the defendant
here is trying to cover up the facts or does not want the
facts to come out, that he is in some fashion hoping that
nothing develops, and so forth.
I want to make clear on behalf of this
defendant that he is bound by law, by the secrecy agreement,
and by his superiors not to speak. This is not a question
of what he would want to reveal or what he would say if he
were given the opportunity.
This defendant may want the facts to come out
far more than the plaintiff knows; but he is bound by law,
and he has no choice.
This is a legal matter that we are now
discussing and that is as to whether or not he did have
absolute privilege. Mr. Helms' affidavit directs this man
to make no further statements other than those which have
been made in the pleadings thus Ear.
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On all of these grounds we respectfully
request Your Honor, to deny their motion and let your
order stand.
THE COURT: To let the order stand. Now, do
you want to argue the motion for the protective order at the
same time, or shall we dispose of the other one first?
MR. PRETTYMAN: Well, I think we can do that
in just a moment.
THE COURT: It seems that the two are closely
tied together.
MR. PRETTYMAN: The motion, it seems to us,
practically speaks for itself. The only question that the
? man, or the only information that the man could give in the
deposition is precisely the facts which have been sworn to
in the record, that he is directed by Mr. Helms and
precluded by law from going further.
Now, if that is true, if Mr. Helms had
authority to do what he did, and we believe that he did
under the statute which he cites, then there simply cannot
be a deposition unless it is to be a meaningless formality
because the man just can't answer.
THE COURT: You mean he will claim privilege
to all the questions except those which ask the same
questions which have been stated by Mr. Helms?
MR. PRETTYMAN: Yes.
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THE COURT: Is that what you mean?
MR. PRETTYMAN: Yes, it is, Your Honor, and
further I want to say this, Your Honor, that that would
apply even to the questions which may seem innocuous on
their face. For example, let us assume that in the
pleadings that Mr. Rausl home address does not appear, which
it does, but let us assume that it did not, and the first
question out of the box was, "State your home address."
It may be that for reasons which are totally
unknown to us that the agency would not want Mr. Raus' home
address stated. There may be things relating to his home
address about which we know nothing and which for security
reasons should not be stated.
Even the most innocuous questions on their
face could not be answered if they have not already been
answered because Mr. Nelms has reserved to himself the
question of whether they would affect the security interest.
Therefore it seems obvious to ?us that a protective order
is in order.
MR. RASKAUSKAS: May it please the Court, I
will address myself to the motion to strike the order to
-
amend the answer, with the Court's permission
respecting the argument on the summary judgment motion,
associate counsel, Mr. Stanford, is prepared to speak to
the Court on that aspect.
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Now, I would reurge upon the Court without
rearguing the points we have raised in support of our motion.
I will not inflict upon the Court a repetition of these
points.
I would like to add only one or two things in
answer to what Mr. Prettyman has just stated and one new
matter.
We have nowhere in this file a statement from
the defendant that he was precluded from raising this
defense at the outset. The tenuous basis for the position
of the defendant in this case is the statement made by Mt.
Prettyman when he testified that he and Mr. Connolly had a
consultation with an attorney at the CIA. That is the only
_
basis for justifying the delay; we have nothing from the
defendant.
THE COURT: Well, when you say a "statement"
Mr. Prettyman testified under oath, didn't he?
MR. RASKAUSKAS: He testified.
THE COURT: Subject to cross-examination.
MR. RASKAUSKAS: Yes, Your Honor, but he
testified under oath that he had a conference with an
attorney at the CIA on page 73 of the last hearing.
THE COURT: Have you got that? I think I
read it the other day.
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Yes.
MR. RASKAUSKAS: We have nowhere in this file
that any official of the CIA forbade Raus to assert this
defense at the outset. We have nowhere in this file that
Raus ever asked any official permission to assert this
defense.
Casting the testimony of Mr. Prettyman in its
best light I would reiterate that we have an opinion of an
attorney at the CIA that they could not plead this defense.
Now, that is taking it in the light most
favorable to the defendant on this business of undue delay.
The affidavit most recently submitted by the
Deputy Director of the CIA, I think, raises a new point9
think it raises the point which says that if the defendant
had the defense the most he can do is plead it but he cannot
prove it.
So for this reason and this reason alone I
would say that it would be a useless gesture for the
defendant to amend his complaint and plead that which he
cannot prove.
THE COURT: You mean answer? He does not
say he cannot prove it. He asserts the privilege, and
under the law, as I understand the law, which he is
authorized and justified in asserting it, he does not have
to prove it. The case stops like that, and the Court must
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stop immediately.
MR. RASKAUSKAS: We respectfully differ on
one point with Your Honor. The defense of official
immunity stops the case.
THE COURT: Yes.
MR. RASKAUSKAS: But this defense must be
proved. The man first of all must prove his employment,
and secondly, he must prove that his conduct comes within
at least the outer perimeter of the scope of his employment.
This is a very difficult and complex problem
in almost any case, and is found in the case upon which the
defendant relies, Barr v. Matte?, a five to four Supreme
Court decision, where the Justices wrestled with this
problem, and some of the dissenters stated that that case
gave no good case to case test, that it would have to be
decided, each case on its own merits.
THE COURT: Yes.
MR. RASKAUSKAS: But the defendant must prove
that his activities were within the outer perimeter of the
scope of his employment.
THE COURT: Well, doesn't this affidavit show
that?
MR. RASKAUSKAS: No, Your Honor.
Now, this is strictly a factual determination
that must be made; and to say that a man is employed by the
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CIA does not prove that his conduct was within the outer
perimeter of the scope of his employment; nor for that
matter does it prove that the agency had itself the authority
to authorize this conduct.
Our position is and has been, first of all,
that we cannot ascertain whether or not this man was
authorized, with the facts we have now, to do what he did,
and whether it was within the scope of his employment. That
discovery had not been available to us, and we cannot inquire
into it. We are forestalled from inquiring into that.
But we go beyond that and say that the agency
itself under the U. S. Code has no authority and has shown
no authority, and in reply to our opposition to the motion
for summary judgment has never responded citing their
authority for becoming involved in private associations in
this country of authorizing a man to disseminate information,
THE COURT: You mean the affidavits have not
shown that?
MR. RASKAUSKAS: No, they have not, Your Honor,
nowhere in this record.
THE COURT: Well, he is not a party to the
case, and it seems to me that whether the CIA acted wisely
or unwisely, the authority, if you read this affidavit of
Mr. Helms that has just been filed by the Government, the
Government has come in at the request of the Court and
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presented this, and it is being relied on by the defendant;
so that whether it comes in from the Government or comes in
from the defendant, it seems to me to make relatively little
difference. It is before the Court now.
MR. RASKAUSKAS: I respectfully differ with
YOur Honor.
THE COURT: I do not mean that you cannot
answer it, but they say in Paragraph 8, if you have read
that?
. MR. RASKAUSKAS: I have read that very
carefully, Your Honor.
THE COURT: In 7 and 8, they say that--
MR. PRETTYMAN: And 6 also, Your Honor.
THE COURT: And 6 also, all right.
"For a number of reasons, including his past
history and his position as National Commander of the
Legion of Estonian Liberation the defendant has been
a source to this Agency of Foreign Intelligence
Information pertaining inter alia to Soviet Estonia
and to Estonian emigre activities in foreign countries
as well as in the United States.
"7. The Central Intelligence Agency has
employed the defendant from time to time--concurrently
with his duties on behalf of the Bureau of Public
Roads--to carry out specific assignments on behalf of
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the Agency. Defendant was so employed on those
occasions specified in Paragraphs 5, 6, and 7 of the
complaint.
"8. On those occasions specified in
Paragraphs 5, 6, and 7 of die complaint, the defendant
was furnished information concerning the plaintiff by
the Central Intelligence Agency and was instructed
to disseminate such information to members of the
Legion so as to protect the integrity of the Agency's
Foreign Intelligence Sources? Accordingly, when
Juni Raus spoke concerning the plaintiff on the
occasions about which complaint is made, he was
acting within the scope and course of his employment
by the agency on behalf of the United States."
Now, that seems to me to be a clear statement.
EASKAUSRAS:
NO D
I appreciate Your
Honors position in this matter, and maybe this might clear
matters up somewhat.
An affidavit in support of a motion for
summary judgment under the provisions of Rule 56 (e) must
state such matters to which the affiant is competent to
testify at tr4l.
THE COURT: Yes.
RASulUSKAS: The affidavit may not be a
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collection of factual conclusions, He may not state
ultimate facts. He may not state things which are for a
Court or for a jury to determine.
Now, we have a factual determination in this
case, and that is whether Juni Raus was in fact acting
within the scope of his employment.
The fact that there is a secrecy provision
involved is unfortunate, perhaps for both sides; but that
still does not obviate the pro6lem that exists as to the
factual resolution.
Now, this plaintiff is not willing to be bound
by the unilateral assertion of any member of the Executive
Branch as to whether an individual was acting within the
course and scope of his employment. That is the ultimate
fact which we are hopeful one day this Court will resolve.
THE COURT: Well, I think the Court will
have to resolve that, as I understand it.
Do you contend, Mr. Prettyman, that the mere
raising of the point stops the case or that there must be
proof of the point?
MR. PRETTYMAN: Well, we say there is proof
111 of the point. There is the same proof here as there was
in Howard v. Lyons.
THE COURT: You mean the affidavits?
MR. PRETTYMAN: Yes, sir.
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THE COURT: The affidavit goes as far or
further than it went in the Boston case?
? MR. PRETTYMAN: Yes, it certainly does. It
shows the nature of the duties to more extent, and it clears
up any possible conflict.
THE COURT: Was. that a summary judgment
case?
MR. PRETTYMAN: Howard v. Lyons, yes, it
certainly was
THE COURT: Well, now, the point is however,
is that the plaintiff will have an opportunity to file a
counteraffidavit, or it is possible without the Court
infringing on the executive privilege, I suppose he can
attempt to take the deposition. I think the deposition
had better be taken before the Court because there are
going to be rulings on every question.
That was what I suggested, that if these
facts in here are supported and if they are not controverted
adequately I suppose they would be sufficient for summary
judgment, Therefore it is important for the plaintiff
to try to avoid that.
MR. PRETTYMAN: Well, Your Honor, I do want
to emphasize to you that they have supplied no affidavits
that in any way contradict the only two questions before us.
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The question is, was he employed, and secondly, was he
acting within the scope of his employment?
THE COURT: All right, but they have their
difficulties by introducing evidence to controvert it, and
I want to hear from counsel for the plaintiff of how they
propose to controvert this affidavit.
MR, RASKAUSKAS: If Your Honor please, that
is an affirmative defense for the defendant to prove.
THE COURT: Well, I am ready to say right
now that this affidavit is sufficient to prove it unless
you have some adequate counterevidence.
MR, RASKAUSKAS: Yes.
May Mr0 Stanford address himself to that
particular point?
THE COURT: Yes. It seems to me, and that
is why I want to give you the opportunity to produce what
you may have.
MR, STANFORD: Your Honor, I would like to
again read Paragraph 8, which I think is the essence--
THE COURT: All right.
MR. STANFORD: --of the second affidavit of
111 Richard Helms. I would like to read that in the light of
his initial affidavit since in reality there has been very
little modification despite the fact that there has been
additional verbiage.
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THE COURT: Well, it was not so much the fact
that I was dissatisfied with what he said in the first one
as
came in not as from the Government and not with the usual
Government certificate0 I wanted to be sure that it was
authentic0
was not satisfied with the authenticity of it. It
am glad to hear you.
Go ahead.
MR. STANFORD: Your Honor, Paragraph 8 of the
affidavit of Richard Helms has in common with the prior
affidavit the fact that it successively intends to give the
impression that the defendant was following his instructions
? at the time he made these statements; but I would like to
read that statement and analyze it very, very carefully.
The first sentence says that:
"On those occasions specified in Paragraphs 5,
6, and 7 of the complaint, the defendant was
furnished information concerning the plaintiff by
CIA."
We have no information here, and nothing is
said as to ,what information was furnished.
THE COURT: No, that is right, that is what
they say, and I understand that.
MR. STANFORD: All right.
So we do not know what information was said
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about, or given to Jun i Raus about Eerik Heine. We do not
know whether they said he was suspicious, that he was a
KGB Agent, and we do not know what was said,
Then Nelms states:
"That Raus was instructed to disseminate such
information to members of the Legion."
We do not know what information he was told
to disseminate. We do not know whether it was, "Look out
for Eerik Heine, be careful of him, do not be too persuaded
by his statements, you must view with suspicion anyone who
is so vitally anti-communist."
We do not know whether that was said or
anything more was said,
Then we are not told in this affidavit,
nothing is said in Paragraph 8 that Juni Raus did in fact
convey any of this information to the Legion. We are noc
told that. No allegation or assertion is made of that sort.
All we have is a gap, and of this which is wide, and then
a final statement of conclusion, the imperious statement by
Helms, which we say does usurp the position of the Court
when he again makes his judgment:
"Accordingly, when Juni Raus spoke concerning
the plaintiff on the occasions about which complaint
is made, he was acting within the scope and course
of his employment by the agency on behalf of the
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United States," another judgment being made by
Helms.
THE COURT: But the only way you could get
111 behind that would be to show verbatim what he was told by
?
?
the agency.
MR, STANFORD: Yes.
THE COURT: And how much, and so forth.
MR, STANFORD: Yes.
THE COURT: And if you got that, you would
probably--well, we have to assume for the purposes that the
plaintiff may or may not be a Soviet agent or that the
Soviet agents are, even though this man is not a Soviet
agent, even though he is everything he says, the plaintiff
is everything he says he is, certainly that the Soviet
agent might be very much interested in where the CIA got
the information, and if further details were given it might
easily lead to the disclosure of the entire United States
counterespionage,
MR. STANFORD: Your Honor, it may be the most
vital information in the history of the world; but that is
exactly our point, that this judgment made by Richard Helms
that he was acting within the scope is a legal opinion by
him.
There is no statement that, no factual
assertion in here that the statements made, which we? allege
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in our complaint, statements, slanderous statements we
allege, malicious and slanderous statements, there la no
allegation here that the statements made were under
instructions.
There is a wide gap there.
Now, would this reveal anything about the
secret plan of the United States, the counterespionage
plans, if the affidavit said that the information was given
to him, and information was told to him to tell the Legion,
and that that same information was what constituted his
utterances?
We do not have that in this affidavit. We
? have a marked difference. All we have is that he was
?
given information and that he was told, "Give this information
to the Legion," and then we have a wide gap, and then the
assertion which is a legal opinion of Richard Helms, which
is the Court's decision rather than Richard Helms that this
was in the scope of his employment.
This is not sufficient on its face to
constitute a defense, and in the course of the points or in
the juncture of this particular hearing, it is not an
assertion of a defense which should allow the amendment to
be made because of the fact that this does not assert, and
there is no assertion here which is sufficient.
THE COURT: No assertion where? In the
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MR. STANFORD: We have only the statement--
THE COURT: Or the affidavit.
MR. STANFORD: In the affidavit, in
Paragraph 8, that information was supplied to Juni Raus,
and we do not know what that information was.
The next statement we have is that he was
instructed to disseminate such information to members of
the Legion. We have no statement that he did in fact
disseminate that same information. We have no statement
that that information was to tell the Legion that he was a
KGB Agent.
We believe that on the second writing of this
affidavit, a careful second writing, a calculated and
formulated affidavit, that if they could have said that they
would have said that, but in the absence of it, and I am not
sure I am making it clear.
THE COURT: Yes, I understand the point but
the question I wanted to ask was whether that was an
inadvertence (whether the Government is willing to make
the affidavit more specific on that point to meet the point
that is made if they can.
What position is the Government going to take
MR. MARONEY: Your Honor, I do think this
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that--not speaking for the Government, but I do think this
language has to be read in the context of the fact that it
is answering the plaintiff.
It says:
"On those occasions specified in Paragraphs 5,
6, and 7 of the complaint," and then further, "Juri
Raus spoke concerning the plaintiff on the occasions
about which complaint is made."
THE COURT: Yes,
MR, MARONEY: It seems to me that is clear,
THE COURT: Well, it does not literally say
that he was told that this man was a communist or that he
was not told that this man was a KGB Agent, and it says that
when he spoke concerning the plaintiff he was acting within
. 0
th.9_2E2R2_2f_Lis authoriti.
Well, now, I think that is clearly inferable.
MR. MARONEY: I think so too.
THE COURT: Paragraph 8 could_be more
specific.
MR. MARONEY: In other words, claiming he
said what he said.
THE COURT: You argue that the Court should
draw the inference from it, or really it is not a question
of inference, but you say I should construe it.
MR. MARONEY: Yes, sir.
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THE COURT: As saying that when he spoke
concerning the plaintiff on the occasions about which
complaint is made he was acting within the scope and course
of his employment by the agency on behalf of the United
States.
Naw, it is one possible construction as
\suggested 1)2 this sentence that he was acting in the course
of his employment when he madelthis speech without saying
that he was authorized to say this.
Now, you have got two questions, a question
of law, and a construction of this paragraph, and a question
of law that follows, of whether that admits the privilege,
if you do not make it more specific.
Now, of course, if it should be construed to
be as specific as they say, then the point evaporates. I
EaL.E.Quiag_ap.. whether it is sufficiently specific. If
it is sufficiently specific, I think it is all you need
probably.
If it is not sufficiently specific, the
question would be, is the Government willing to make it
more specific in order to avoid the possible point and
further possible inquiry, or does the Government and the
defendant wish to stand on the affidavit as now drawn with
this possible infirmity suggested?
I am not ruling on the proper construction.
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MR. MARONEY: Well, if Your Honor would
disagree with us as to the construction it may be we would
then have to check with Mr. Helms to see what he is willing
111 to say. Of course, we do get into the question here again
?
?
of the secret information that was permitted, and of course
the man does not have to say word for word.
THE COURT: Well, of2922ursex_he does not haVe
to, but what he is charged with is very simple of having
said particular things.
Now, you have a different question of law if
he was acting, as he says, that he, "Was furnished information
concerning the plaintiff by the Central Intelligence Agency
and was instructed to disseminate such information to
members of the Legion so as to protect the integrity of
the agency's foreign intelligence sourcesou
Now, if the information he was given was that
this man was a communist and he was a KGB Agent, then the
legal point is relatively simple.
If he was simply given some general information
and drew his own conclusions from it you have a somewhat
more difficult legal point on which jou may still be
entitled to win. That is, that the man may be entitled
to use a certain amount of judgment in what he says, and
you have some authorities which apparently support that.
Obviously the legal question the Court will
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42.
have to decide is going to be slightly different if the
affidavit: says one thing than if it says another.
Now, you say I should construe it as saying
what Mr. Stanford says it does not say. I do not want to
pass on it.
MR. MARONEY: We will obviously be happy to
abide by Your Honor's decision, and if you do not so
construe it, then of course perhaps these gentlemen can check
back with Mr. Helms and see what he has to say.
THE COURT i was just going to say that
while everybody is here it would just save a great deal of
time if this is what he was told, that if this is what he
111 was told, the affidavit has been drawn, you say, and I
?
think Mr. Kenney says in effect to give that,
MR. MARONEY: That is the wliole point of the
affidavit.
THE COURT: To make that.
AR. MARONEY: That is the effect of the
affidavit and it becomes senseless if it has a different
interpretation or a different interpretation is put on it.
THE COURT: That is right.
MR, MARONEY: If that is what he was not told.
THE COURT: Well, why leave it to interpreta-
tion if it can be made specific.
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MR. STANFORD: Your Honor, I think that is
just the point that it was not carelessly left in this
fashion.
THE COURT: I see.
MR. STANFORD: That it was most carefully
drawn with full calculation in order to allow this to be
brushed by, which it was in the first reading by me.
THE COURT: Well, I am not passing on it one
way or the other aside from this point, and I certainly
read it originally as the Government, or as the defendant
would have me read it. You make this point that there may
be a difference, and I think we might as well find out
whether the Government is willing to b more specific or
whether they want to leave it this way.
MR. STANFORD: Your Honor, this is their
second time on this particular motion.
1 would like to call the Court's attention
to the fact that this very vital point was brought out in
Kelley vs. Dunne, 344 F. 2d 129.
THE COURT: What case?
MR. STANFORD: Kelley vs. Dunne, 344 F. 2d
129, at page 132, where it states:
"Taking these cases collectively, the
principle is established that the free and
untrammeled behavior of certain government
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is
representatives/so important to the public welfare
that, within limits, they should not be exposed to
liability for damages by charges of improper motives,
or of conscious wrongdoing. The difficulty is the
extent of the principle. We may note however
certain common denominators. In the first place
the conduct of the defendants in all cases, viewed
without reference to the defendants' alleged motives,
was within the normal scope of their agency powers.
A second common denominator is that the activity of
the defendant was prima facie in accordance with his
duties and customary behavior. It is usual for
an Attorney General to take procedural steps to .
enforce the statutes, fora disbursing officer to
explain the circumstances of a payment, for an
information officer to give out information. While
np act can ever be judged in vacuo, but only with
some measure of reference to external circumstances,
sone actions require very little showing in order
to appear at least prima facie justified, while
others need elaborate support."
Now, this particular case, the affidavit on
its face would classically fit into taat latter category.
We have a man here who is a part-time employee, a person
who is, I chink it may properly be said, was really only a
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link with the Estonian community. As a matter of fact,
we are told that he did have a full-time job yith anothei'r
orgenization, and that his contact, his empl?ment was orgy
for the purpose of his liaison with the Legion)/ the
Estonian Legion.
THE COURT: Well, isnIt that the normal way
of engaging in
--
MR. STANFORD: We do not know.
THE COURT: --in intelligende and counteih
intelligence activities?
MR. STANFORD: We do not know, Your Honor.
do know that they have a gigantic building out there in
George Washington Parkway out on tae Potomac, whicki employs
many full-time people.
THE COURT: Counterintelligence agents
ordinarily do not wear uniforms, I. understand.
MR. STANFORD: But we are told that this man
is a full-time employee of another government agency.
THE COURT: Well, that is right, if he is
acting as an undercover man.
MR. STANFORD: Well, we are not really told
that, Your Honor,
THE COURT: Well, ae has told that he was
acting for this agency, and it is an agency which normally
makes use of all sorts of people.
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, MK. STANFORD: What I meant, Your Honor, is
this: That in these particular circumstances there must
be a full and elaborate showing, as set forth in the Kelley
vs. Dunne case, that this was one of these common
denominators, that this is one of the normal ways of
operating, that he normally made statements, that he was
normally given authority; and we have to determine also
whether or not he was specifically instzucted to do this.
Now, 1 do not see how any possibility could
be thg,t_there,couldbe any possibility that there would not
be a statement in Paragraph 8 that he was instructed
specifically to make these statements, if in fact he had
_
this.
As a laatter of fact, in the secrecy agreement,
which we have attached co the affidavit, attached to the
last pleading by the defendant, .the secrecy agreement in
Paragraph 2 says that the revelation of the fact that an
agent, like Jun i Raus, has information received from a
government
agency will not be done, as it says in Paragraph
2, will not be disclosed to any person "unless I have been
specifically authorized in writing to do so by a
representative of CIA."
Their very secrecy agreement says that whenever
ne is told to reveal information to other parties, which he
certainly did in this particular case, that he would be
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specifically authorized in writing to do so by a
representative of CIA.
Therefore they must have, if they are
following the procedure, which they tell us they wish us to
follow, that some specific authority was given to Juni Raus
as to what he could disclose.
THE COURT: They say they gave him such
instructions.
MR. STANFORD: They do not say what those
_
instructions were.
THE COURT: No,
MR. STANFORD: And I think that this is a
cloud or a cloak.
THE COURT: Yes, I understand what you mean,
and it may be so; I do not know, and I want to find out
whether the Government is willing to make it more specific.
If not, you then get to the question of
whether they have not made it more specific because if they
_stated verbatim what they had told him it would lead to the
agents who gave that, the secret agents, who gave him that
information.
MR. STANFORD: Exactly, Your Honor, but who
is to benefit from that and who is to suffer from that?
We say that the CIA before any statement or utterance is
made that when inquiry is made in the course of the trial
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that they will shut the cloak down, and they have
subjected the individuals in this particular litigation as
a result of their instructions, that they can then not
assert this, and this must then be detrimental to the
defendant and not to the plaintiff.
If they can not prove their defense, if they
cannot show that he was within the scope of his employment,
or if they refuse to do so that is unfortunate for the
defendant, and they will have to reimburse him or
indemnify him for the wrongs that he does to private
individuals, individuals who, as in this case are militant
anti-communists on the face of things and in their
reputations throughout this country and Canada, and I think
that must be considered. I think we are really looking at
this as a benefit to the defendant, and that is the
unfortunate thing that occurs, that the defendant cannot
prove his case.
THE COURT: Well, your man is engaging in
anti-Soviet activities; is that right? Is he an agent of
the Intelligence, of the anti--
MR. STANFORD: He is a patriot, Your Honor.
THE COURT: All right, but when people
engage in intelligence and counterintelligence activities,
if they can bring lawsuits and have all information spread
on the record, it is an unusual way of conducting
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intelligence, of espionage and counterespionage activities.
MR. STANFORD: He is not asking for the
information. What we are saying is that if they refuse
to supply the information for their own defense it must
inure to the detriment of the def6ndant, and not to the
plaintiff because you can't come outside a door from a
room of secrecy, and announce the fact that this was within
the scope of employment, and then jump back into the room
and say that, "we can't explain it. You must accept our
judicial decision, and you can't go behind it."
That is what we are being asked to do or what
the Court is being asked to do by the defendant. They are
like a jack-in-the-box who jumps up and says, "Scope of
employment, and as soon as you try to make a factual
determination, he jumps back again in the box and says, "No
inviu shall be made."
This cannot help but inure to the detriment
of the defendant.
THE COURT: Well, that is what I said the
defendant could not do, but whether the Government can do
it is another matter.
MR. STANFORD: But the Government has not.
THE COURT: Well, that is what we want to
find out as to what they are going to do.
Now, is the Government in a position to say
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whether they can be more specific or do you want to
check and see?
MR. MARONEY: I am not in a position to
answer that, Your Honor, but I would be glad to go back
and to make inquiry of Mr. Helms to see whether that matter
can be further clarified.
THE COURT: I think we ought to know that.
We can then discuss where we go from heare on the basis
either that it will be clarified or that it will not be
clarified.
50
In either event I have got to make a decision
on the summary judgment one way or the other.
Now, before making the decision on summary
judgment we have the request to take the deposition of Mr.
Raus, the defendant.
MR. PRETTYMAN: Your Honor, am I going to
have an opportunity to reply?
THE COURT: Yes.
MR. PRETTYMAN: To answer some of the
statements that were made?
THE COURT: Yes, go ahead.
MR. PRETTYMAN: I do not want to unduly
prolong this, but I think for the record I should make
several things clear.
They say that there was no statement from the
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defendant in the record that he was precluded from
testifying at the outset. Of course, it is not necessary
to have a statement from the defendant. We have a statement,
a sworn statement from his attorney in the record; and
moreover, and more importantly, it was not just by a
specific direction by his superior that he was precluded
from talking, but it was in the law.
The statute says, and the secrecy agreement
says, which is in the record, it says that he was precluded
from talking.
Next they say that we cannot prove our defense.
Well, we have proven it because the only two factors here
are employment and scope of duty.
In Howard vs. Lyons again the::e was a very
simple affidavit, and I do not think I need to comment any
further on that particular point.
THE COURT: Well, that is the point that if
you have to stand on this affidavit, if the Government does
not clarify this matter, then the Court has got to construe
it.
MR. PRETTYMAN: Yes.
THE COURT: And if the Court construes it the
way you say, it is just as good as if it says it specifically
provided it stands, that the construction stands up on
appeal.
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If the Court does not construe it the way you
have and Eeels it is more ambiguous, then you have got to
win on the point that if he was speaking in the course of
his employment he could go beyond what he had been told
in the exercise of his judgment as an agent or he could
word it a little differently0 I do not su
*
ose he has to
word it in totidem verbis the way he is given and he can
say it if he is given something in technical language he
can say it in popular language, and matters of that sort
at least, and perhaps he can use his judgment as to what
ought to be said.,
All of those things are going to depend upon
case law.
MR. PRETTYMAN: Well, this affidavit; I am
sure, was indeed carefully drawn, out hot for the reasons
that they say, It was carefully drawn, I am sure, so as
not to reveal one iota of information more than was
absolutely essential to plead.
THE COURT: Well, you say it was intended to
mean--
not say.
MR. PRETTYMAN: Yes. ?
THE COURT: What Mr. Stanford says it does
MR. PRETTYMAN: Well, I am perfectly happy
to have them go back to Mr. Helms and see what more can be
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said0
THE COURT: All right. Let us see if it can
be. clarified,
MR. PRETTYMAN: Yes.
THE COURT: Well, that is to be done. Now,
we have got to have that done before we can do anything else,
because where you go from there depends upon that, I*
suppose.
MR. PRETTYMAN: The plaintiff says that under
Rule 56 (e) the assertions must be those that the affiant
can testify to and that here since he can't testify as to
all the facts that you should disregard this affidavit.
Of course, if that argument were true, Your
aonor, the CIA would be automatically taken out of all
protection with respect to absolute immunity because there
are many things that you can charge an agent with saying
which he could not--
THE COURT: Which he could not prove. That
is undoubtedly a very serious point.
MR. PRETTYMAN: Yes, sir.
THE COURT: When you are dealing with matters
111 of espionage and intelligence and counterintelligence it
presents a different case, and I think as Mr. Stanford's own
case said, that these things can't be considered in a vacuum,
that you have got to consider and weigh the interest's of both
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sides.
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I will weigh the interests of both sides, as
think I indicated last week; and it is not an easy matter,
and I want to have it narrowed down as much as we can.
MR. PRETTYMAN: We are lucky here that the
Deputy Director has seen fit to reveal as much as he has,
though I can easily imagine a case where a foreign agent
could accuse a secret agent of slander as to which there
could be no answer at all because the mere revelation of
employment would itself endanger the national interest.
THE COURT: That is right. These are very
difficult problems,
MR,. PRETTYMAN: Yes, sir.
They refer to Kelley vs. Dunne. We want to
point out, Your honor, that in that_case the opinion was
written while certiorari was pending in the Norton vs.
. _
McShane case, that in Kelley vs. Dunne the Court disagreed
with Norton vs. McShane, and that thereafter the Supreme
Court denied certiorari in Norton vs. McShane.
. ,
But even more importantly there--
THE COURT: Norton vs, McShane, Is Norton
vs, McShane on your list?
Mk. -PRETTYMAN: Yes, sir, They both are.
We cited that to you the last time, and it is also in our
and
motion, in our points I authorities,
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THE COURT: All right. I understand that
the denial of certiorari does not add very much to the
authority of the original opinion.
MR. PRETTYMAN: I appreciate that. But 1
think there is a more important point to be made about
Kelley vs. Dunne. There is no showing here that what
happened was not part of this man's normal CIA duty.
TUE COURT:
You say it is not shown that it
was not. You just told them that ten days ago, and they
say they want to try to make the showing, and the way they
want to try to make the showing is to ask Mr. Raus soMe
questions.
Now, how else can they make the showing?
MR. PRETTYMAN: Your Honor, the point that
they are trying to make about Kelley vs. Dunne, as
understand it, is that the Court there said or there made
a reference to statements made during the course of normal
duty.
The point 1 am making here,is that :this
affidavit shows that the CIA's normal duties are to
gather foreign intelligence information, and it is normal
to protect the foreign intelligence sources, which is
apparent from this.
THE COURT: Well, I do not have any question,
and I thought I made the point before you did in interrupting
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Mr. Stanford that.in intelligence work what are normal
procedures are not the same normal procedures that are
involved in some of the Agricultural Department activities,
Let us say.
MR. PRETTYMAN: Well, finally, Your Honor, you
made some reference to the possibility of depositions. 1. do
want to urge upon you that you.please consider that most
carefully..
This is a situation, and again I keep coming
back to Howard vs. Lyons, because it seems to me that it is
a comparable situation. In that case when the superior
flied the affidavit saying that it was in the normal course
of his duties to give out the statement to the Massachusetts
Delegation and to the press, and here this man had handed
out - serioug defamatory statement, there was no deposition
to find out, "Well, how many times have you talked to the
press? How many times have you done it before? What was
your relation with the Massachusetts Delegation?"
That was considered sufficient for purposes of
summary judgment, and there has been nothing put in this
record to contradict that.
THE COURT: Well, all right, I have said that
I think your affidavit is sufficient standing by itself.
Did the plaintiff in the case you referred to
seek to obtain information by discovery to controvert the
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MR. PRETTYMAN: I do not know that, but I do
know that there has been nothing introduced, at least today
In this case.
THE COURT: Well, all right, but he has
requested to take the deposition of the defendant, and it
seems to me there are only two people who can possibly?well,
there are only two classes of people, one of which is a
class of one, Mr. Raus himself, and the other are his
employers in the CIA, the people in CIA.
They are the only people who can be examined
on this.
Now, I am not saying a that any cuestions can
properly be answered but I am not clear why they should
not have the right to ask him some questions and have him
claim the privilege on those that he feels, you feel, or the
Government feels he should not answer.
Now, he can certainly tell his name, I
suppose.
MR. PRETTYMAN: He can say anything that has
already been said on the record, as I understand it.
THE COURT: That is right.
_
MR. PRETTYMAN: But can't go or give anything
in addition to that.
THE COURT: All right. I think that is
right, but if the affidavit means what you say it means, and
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if his superior says, Veil, I macle it clear in the first
place, I do not have to do oily better," maybe he can say
even specifically what you say he may say, though I suppose
the difficulty would be that if be waived, that might open
things up for cross-examination, so I think it is better
that if that is true it would be better for the Government
to pay it than for him to say it as a matter of policy.
But I am not sure that they have not the
rir,he to ask him some questions, and until we l':now what the
vuestions are I do not see how they can be decided.
I think the thing is to bring him over here
at a convenient time and let the pleinttff take his
111 deposit-Ion as far as you and the Government are willing to
let him go.
?
Again I say that if the CIA wants to have
some important person in CIA present at the time in order
to decide whether to object or not, for the Government to
object, and to assert a privilege, I am perfectly willing
to sit in Washington, to go to Washington and take that
deposition.
MR. PRETTYMAN: Well, I do want to make it
clear, your Honor
--
THE CUM: Mr. Kenney is here, and I think
when we have the Judge and the United States Attorney,
maybe the majority Is here, but if the CIA people would like
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it in Washington I am perfectly willing to go over to
Was'aington and have the deposition taken in Washington.
MR. PRETTYMAN: Well, I just want to make it
clear for the record that as we understand the law they have
no right in the face of the uncontroverted affidavit on a
motion for summary judgment to take the deposition simply
because they want to take the deposition, and we think that
as the record now stands that you can decide the motion for
summary judgment without it.
THE COURT: Well, Mr, Prettyman, that is not
the way we
practice in this Court. Just
because you file an
affidavit and they have not got the information to file a
counteraffidavit does not mean that they are not entitled
to try to get the additional information, and the case that
I will?wel3, the one that T think of, the summary judgment
that I granted in Bond vs. Carling, Bond Distributing
Company vs. Caning Brewing Company, the defendant Med a
motion 1.or summery judgment, and I held it up for some time
to give the plaintiff an opportunity to obtain by discovery
some facts that I said he had to controvert or I was going
to grant the summary judgment.
He was not able to obtain the information,
and after an appropriate time I granted summary judgment,
and was affirmed.
But just because you have filed an affidavit,
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unless you say that the affidavit itself in the way it
raises the claim bars the right to proceed, and if you say
it is only by proof of the facts in the affidavit, I am
inclined to be with you.
The plaintiff has got an awfully hard burden
to make me say that the rule that he speaks of that there
must be evidence which the man himself personally testified
to should be applied in all of its strictness to the CIA
and particularly where the security o the Government is
involved. Obviously the rule has to be applied with some
discretion.
But also the Court should not go any further
from the usual method of proof than is necessary to protect
the interest of the United States as distinguished from the
Lntorest of the defendant0 So I suggest that we have e
report from Mr. Kenney to you people promptly as to whether
11r. Nelms is willing to be more specific in Paragraph 3
and whether or not if he is we consider time for taking the
deposition of Mr. Raus, and it may be that you will raise
certain claims to most, to so many of the questions that we
will not get anywhere, but the Court will rule on them as
they come until we have established a sufficient pattern
that will make it futile to go any further or futile for
you to object any further.
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do not mean to prejudge it, but I think
they are entitled to make a try.
Now, do you want to attempt to fix any time
now? Everybody is here from Washington. I do not want
to bring everybody back, and in view of the suggestion by
the plaintiff that they prefer to have things done formally
maybe we can better do it while everybody is here in open
court rather than to try to work it out by telephone calls
back and forth to the Judge.
We do that routinely in Baltimore, but
plaintiff's counsel objected to it being done here, and
am willing,if they are Washington rules, I will play
Washington rules, but counsel on both sides come from
We anyhow.
MR. PASNAUSYAS: May I be heard on that poilt,
Your Honor?
THE COURT: Yes.
kra. PASYAUSKAS: First of all I would lihe
to say as a narenthetical remark net my associate and
are as concerned about national security, I think, as anyone
else is in this case.
Secondly, Ave believe in the amenities and
courtesies that counsel always extend to each other in the
course of counsel and because we all hope to practice a
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number of years and would like to have it as pleasant as
possible, as arduous as it sometimes gets.
But what we objected to was an informal
approach in what we contend to be an extremely serious case
where the defendant wanted to st up a hearing date here
and presented us with a big surprise, and it was only after
talked to your Clerk, Your Honor, that we got this
affidavit in the mail, and I believe that was through the
instructions of the Court through your Clerk.
But we were just given a date, and we did not
think it appropriate for counsel to come running over to
Baltimore for a mystery session. So that is the reason,
We are delighted to observe any amenities we
can with all counsel.
THE COU;T: Well, I do not want to bring
people from Washington to Baltimore unnecessarily just Lo
work out details.
Now, can we get any idea how long it will take
Helms to decide or whether he will modify the affidavic
or not?
MR. MARONEY: As to whether we can supplement
? the affidavit with respect to Para6:aph 8?
THE COURT: Yes.
MR..MARONEY: I would think we can do it,
ascertain one way or the other within twenty-four to forty-
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eight hours.
Hon r.
63
THE COURT: All right. Well, that is fine.
Now, do you want to fix a date?
MR. PRETTYMAN: Assuming he is here, Your
THE COURT: Yes.
MR. PRETTYMAN: Mr. Maroney would have to
00-et in touch with him.
MR. MARONEY: Yes. He was here two days
ago.
THE COURT:
All right, Now, do we want to
try to work out a date and time for the taking of the
111 deposition of Mr. Raus?
MR. PRETTYMAN: The only difEiculty I have
there, Your Honor, is that Mr. Connolly is not here, so i
do not know his schedule, and I have e.:tensive hearings
beginning in Chicago in a case on May 4th which may take as
long as six weeks.
THE COURT: Well, I think we can do it sooner
than that. My guess is that this is not going to be a
very long session, though it might. If he is going to be
asked to answer 450 questions lc is going to be a-very
different matter', but I think that if we get over the
hurdles of whether he is going to be allowed to answer this,
that, or the other type of question, why then maybe it can
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be moved on to somebody else.
MR. STANFORD: In view of what Mr. Prettyman
says about his being engaged in hearings in Chicago from
the 4th for a period of about six weeks, and the Court's
statement that we can probably handle that matter sooner,
know that Mr. Connolly is set for a trial next Monday
because I am also engaged in that on the other side, Monday
and Tuesday of next week, and I am sure it will take two
days, unless settled, and it does not look like it will be,
so that it might be two days, or three, Tuesday, Wednesday,
and Thursday.
MR. PRETTYMAN: The following week might be
even better, Your Honor, the last week of the month.
am going to be in San Francisco che most of
next week, but he may, and there is no reason why both of us
have to be Here,
MR. STANFORD: The following week would be
beginning with the 25th.
THE COURT: That is fine. The only thing
know I have to do that week is to redistrict the Congressional
Districts of the State, one of three Judges of the Court.
MR. PRETTYMAN: You say next week?
MR. STANFORD: How about the 27th?
MR. PRETTYMAN: That would be .fine.
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65
THE COURT: Well, let us see.
MR. STANFORD: Your Honor, can we---I think
THE COURT: Do you want to go off the record
MR. STANFORD: Yes.
THE COURT: Let us go off the record.
(Discussion off the record.)
MR. PREYZYMAN: Can we go back on the record?
THE COURT: Yes.
MR. liARONEY: In Mr. Nelms' affidavit of
April 1st: there is an obvious error on page 3 in Paragraph
11. There is a reference to 403 d. The "d" should be
in pai:enthesis. There was a Section 403 d without the
parenthesis in the Code. It is still there but it has
been repealed0
It would--
for a minute?
that?
THE COURT: Is it agreed that I just corTect
MR. MAROAEY: Yes.
Ha. STANFORD: Yes.
na. PRETTYMAN: Yes.
111 The "g" however remains.
THE COURT: Well, then, I will hear from Mr.
Kenney in the next couple of days.
Do you want to fix the time?
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think April 28th is about as good a day
as I cou'Ld have, either here or there,
me know.
Just let
MR. PRETTYMAN: I understand, just so I am
clear on this, Your Honor, that if there is to be a
supplemental affidavit from Mr. Helms we will attempt to
file that promptly.
THE COURT: Yes,
MR. taETTYMAD: Then Your Honor will decf.de
on the basis of the affidavit as to whether this further
deposicion attempt is fruitless.
THE COURT: Well, I do not know. If he is
going to say,that he is going to claim that he can't answer
anything, that he is not going to be allowed, if Mr. Helms
is going to say, "I am not going to let him answer anything."
HR. PRETTYMAN: Of course he has already
said i.hat.
THE COURT: Well, he said he can't go beyond
--
what did he say?
MR. STANFORD: Beyond what has already been
stated.
THE COURT: To make no further disclosures
pertainging to the use and employment of Juni Raus. If
that means?let him be specific. If that means he is going
to tell him not to answer any questions, then that answers
it
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it, and it may be that that is what this means, to make
no furtaer disclosures concerning Ls employment or relating
to tnis matter without specific authotization by proper
officials of tae Central Intelligence Agency.
So it does not tell Aim not to say anything.
It tells aim not to say it without the disclosure of the
agency, and if you are going to claim that he is bound by
this, the only practical way to take the deposition is in
the presence of somebody with authority to say "answer or
don't answer."
MR. 1-RETTY1'UN: Wel I tnought Your Honor
said, I thought Your Honor said that if tae affidavit from
Helms was specific enough on the question of what informa-
tion was passed to Raus that then no deposition might be
necessary 0
THE COURT: I think it probably won't
because I do not see how they are going to be able to
accomplisn anything.
MR. kRETTYMAN: That is the point that I am
making., Your Honor.
THE COURT: That is up to them, and if they
want to take the deposition--
MR. STANFORD: I feel that there may be a
middle ground. In other words, we have that information
waich was disclosed to us, that is that information that
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66
they refused to do, but there is a grey area as to how much
we are allowed to get and how much we are not and I would
like to close that gap.
THE COURT: 1 think the plaintiff i have that
right, and I suggest that we set this up in Mr. Helms1
office if we can, and if he is the one who has to do it or
to whomever he will delegate it of whether he will
answer any questions, and we can go over there, and the
privilege can be unless?well, I think there ak:e two things:
If Mr. Helms says, "1 will claim privilege against any
question. I will claim executive privilege on any
question, and I will not allow Raus to answer any question,
then it is futile.
MR, STANFORD: You mean about anything
connected with the case?
THE COURT: That is right, Then I have got
to decide it on that basis, but until he says that I am not
going to assume it.
All right.
MR. STANFORD: As Mr. Raskauskas says we
may be presumptuous about allowing us to go over there.
411 THE COURT: Well, I do not care wherever
11
he wants, I was just trying to suit his convenience. If
he wants to come here that will suit me fine, and I usually
have found when I subpoenaed tile Attorney General that 11, get
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AIR\
4)9
somebody else with instructions that I am authorized to go
so far and no further, but what I am saying is I will hold
this in whatever is the most convenient place, whatever is
indicated by the CIA and the Department of Justice.
MR. MARONEY: I do not think it would be
necessary [or the purposes of taking Mr. 'taus deposition
?
to go to Washington or the CIA. I think that can be done
here, and the interest of the CIA would be protected, with
government counsel and perhaps a representative of the CIA
present at the time.
TUE COURT: Who will be authorized.
MR MARONEY: Who will be
COURT: Who will be authorized to tell
him he may or may not answer.
MR, MARONEY: That is right.
THE COURT: --from the Government's point of
view because what this is, he has been told not to answer.
-He has been told to make no further disclosures concerning
ais employment by the agency or relating to this matter
without specific authorization oy proper officials of the
CIA.
Now, that may or may notmean that he cannot
answer. questions, that he has been told not to answer a
question on deposition.
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MR. MARONEY: Yes.
THE COURT: I think we ought to hear It
question by question, and I think it is much better to have
that privilege claimed by and the instructions to him
given. Now, if the instructions are given repeatedly that
"We are not going to allow him to answer any," why then
the thing is going to be futile, but maybe it is worth a
trip over here for such a thing as that.
MR. STANFORD: Your Honor, depending upon
what amendment, modification, or decision is asserted by ,
Richard Helms following the presentation by Mr0 l'rettyman
and Mr. Maroney of the Court's finding at this time, we
might want to take the deposition of Mr. Helms.
THE COURT: All rig_t,
MR. STANFORD: If that were done we would
ask it to be done simultaneously or at least together.
/0
THE COURT:
I think if his deposition is to
be taken I think it had better be taken in his office
because he would need to look at, if he is going to answer
anything he would need to look at records, and we can't
bring the whole CIA records over here to Baltimore. .
MR. MARONEY: Of course, Your Honor, the
Government would object very strenuously to the taking of
Mr. Helms' deposition.
THE COURT: If he claims the privilege and
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_
says that, whoever is the?head di. whoever is authorized
_ -
c--to-
aim executive privilege, if he is the CIA's only--is
--
the CIA an agency by itself?
MR. MARONEY: Yes.
THE COURT: It is not under any department,
and if the head of the agency claims the privilege in any
Eormal way the Court will recognize it, arid I think I am
required to recognize the executive privilege, and I will
recognize it. But again I think it ought to be on the
record in the case,
MR, MARONEY: Well, Mr. Helms has already
done that in his affidavit which is already on file.
THE COURT.: Well, you had better look up
what the way is that you usually claim executive privilege.
MR. MARONEY: All right.
THE COURT: And be sure you have got it on
the record clearly.
MR. MARONEY: Yes,
MR. RASKAUSLAS: I beg to differ. I think
Mr. Helms has indicated he can give no information at this
time but that he might be able to give information by
inference, from reading Mr. Helms' affidavit by officials
in the future.
THE COURT: Since I do not know that is why
I am requiring it to be made clear, to clarify it. .
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, 72
All right.
_
(Thereupon, at 11:45 o'clock am., the
hearing was concluded.)
. Certified to be a true and correct transcript
of the proceedings in the above case.
Otficiai Reporter
.110MM
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EERIK HEINE,
V.
JURI RAUS,
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Plaintiff,
Defendant.
Civil Action No, 15952
AFFIDAVIT
Richard Helms, Deputy Director of Central Intelligence, being
first duly sworn, deposes and says that:
1. Under the Director's Delegation of Authority to the Deputy
Director of Central Intelligence, dated 28 April 1965, a copy of which is
attached, I have been delegated all authorities vested in the Director of
Central Intelligence in his position as Director of Central Intelligence
and head of the Central Intelligence Agency including those authorities
set forth in Central Intelligence Agency Regulation HR 10-20, a copy of
which is attached.
2. I have familiarized myself with the allegations contained
in the complaint in the above-entitled case.
3. I have familiarized myself with the Central Intelligence
Agency's participation in communicating information concerning Eerik
Heine to representatives of the Estonian emigre community in the
United States.
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4. During the periods of time specified in paragraphs 5, 6,
and 7 of the complaint, the defendant, Jun i Raus, was employed as a
highway research engineer for the Office of Research and Development,
Bureau of Public Roads, United States Department of Commerce.
5. During the same periods of time, the defendant was the
National Commander of the Legion of Estonian Liberation, Inc. , and
was familiar with Estonian emigre activities.
6. For a number of reasons, including his past history and
his position as National Commander of the Legion of Estonian
Liberation, the defendant has been a source to this Agency of foreign
intelligence information pertaining inter alia to Soviet Estonia and to
Estonian emigre activities in foreign countries as well as in the
United States.
7. The Central Intelligence Agency has employed the defendant
from time to time -- concurrently with his duties on behalf of the
Bureau of Public Roads -- to carry out specific assignments on behalf
of the Agency. (Defendant was so employed on those occasions specified
in paragraphs 5, 6, and 7 of the complaint. )
8. On those occasions specified in paragraphs 5, 6, and 7 of
the complaint, the defendant was furnished information concerning
the plaintiff by the Central Intelligence AgencyAand was instructed to
disseminate such information to members of the Legion so as to
protect the integrity of the Agency's foreign intelligence sources.
Accordingly, when Jun i Raus spoke concerning the plaintiff on the
occasions about which complaint is made, he was acting within the
scope and course of his employment by the Agency on behalf of the
United States.
-2-
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9. On May 29, 1963, prior to the occasions specified in
paragraphs 5, 6 and 7 of the complaint, the defendant signed a
Secrecy Agreement with the Agency, a copy of which is attached,
which Agreement is still in full force and effect.
10. After a personal review of the Agency's activities
pertaining to Eerik Heine, I have reached the judgment on behalf
of the Agency that it would be contrary to the security interests
of the United States for any further information pertaining to the
use and employment of Jun i Raus by the Agency in connection with
Eerik Heine to be disclosed(, other than the disclosures already
made in the defendant's answer, my own affidavits, and the
defendant's affidavits, which I have read.
11.( Acting pursuant to the authority lodged in the Director
of Central Intelligence by virtue of the provisions of Title 50,
United States Code, Sections 403d and 403g, and the implement-
ing Regulations promulgated thereunder, I have determined that it
would be contrary to the national interest and would further compromise
the proper protection of intelligence sources and methods to disclose
further information in regard to those material matters which the plain-
tiff has sought to have revealed through his pleadings)I am herewith
directing Jun i Raus to make no further disclosures concerning his
- 3 -
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?
employment by the Agency or relating to this matter without specific
authorization by proper officials of the Central Intelligence Agency.
Richard Helms
Attachments as stated.
STATE OF VIRGINIA
ss.
COUNTY OF F.AIRFAX )
Subscribed and Sworn to before me this jL day of c;._..!; , 1966.
My commission expires 14
4set 44..")
lcr 6 ci
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t '
,
DELEGATION OF AUTHORITY
..... ,,,,,
I hereby delegate to the Deputy Director of Central Intelligence
all authorities vested in me by law or by Virtue of my position as
'
Director of Central Intelligence and head of the Central Intelligence.
Agency, including, but not limited to, the certification authority set
forth in section 8(b) of the Central Intelligence Agency Act of 1949,
as amended, except for any authorities the delegation of Which is
prohibited by law.
All other delegations of authority currently in force remain valid
to the extent they are not inconsistent with this delegation.
?
?"" er4. ;9. ?s?
WILLIAM F. RABORN, JR. ?
Vice Admiral, USN (Ret.)
Director of Central Intelligence
Certified a true copy of' the Director's Delegation of Authority to the ... -
Deputy Director of Central Intelligence, dated 28 April 1965 and in-
corporated into Central Intelligence Agency Regulation, HR 1-2b, last
published.30 December 1965.
7-Th /
1?,,r- ? r
\/11ouis G. Carri-do
CIA Records Administration Officer
STATE OF VIRGINIA
ss.
^
Subscribed and Sworn to before me this i 0--
1966.
day of
My. commission expires if I'lb
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Approved Rease2005/01/27 : CIA-RDP75-000,000190100001-2
,
SECRECY AGREEMENT
I. I recognize that in connection with my confidential relationship with the Central
Intelligence Agency (CIA) I will become apprised of information relating to the national
defense and security and particularly information of this nature relating to intelligence
sources, methods and operations, and specifically onerations, sources, methods, personnel,
fiscal data, or security measures. I realize that in addition to the actual information that
comes into my possession because of my relationship with CIA it will be possible for me to
deduce implications from such information. I understand that unlawful disclosure of this
information or its implications could seriously jeopardize the national interests and secu-
rity of the United States of America.
2. I solemnly swear, without mental reservation or purpose of evasion, and in the ab-
sence of duress, as a citizen of the United States of. America that I will never divulge, pub-
lish or reveal, by writing, word, conduct or other means, any information or its implications
of the character set forth above, including the fact or content of my meeting with raze-
sentatives of CIA, to any person unless I have been specincally authorized, in writing., to
do so by a representative of CIA. I understand that the term "any person" includes,
among others, friends, relatives, spouses, employers or representatives of any State or Fed-
eral Agency, excepting only CIA representatives who have been specifically referred to me
by the representatives of that agency whom I have met on the occasion of signing this
secrecy agreement.
3. I understand that this agreement does not impose any restriction upon me or my
employer with regard to information acquired by me or my employer in the regular con-
duct of -business and not as a result of my relationship with CIA. The mere fact that such
information is of interest to CIA does not subject it to the confidential treatment prescribed
by this secrecy agreement.
4. I fully realize that intentional or negligent violation of this secrecy agreement may
subject me to prosecution under the Espionage Laws of the United States of America (18
USC secs. 793 and 704).
'IN WITNESS WHEREOF, I have set my hand and seal this 2 day of / lav
?
19 4.
T.
Witnessed by sme this 2 7 day of
: r (, "le'?
Certified a true copy.
for security reasons.
fee.,
, 19
,4(
except the name
STATE OF VIRGINIA. )
COUNTY OF FAIRFAX )
ss.
? ?
Sigtature ?i
(SEAL)
of the witnes has been. obliterated
r
_
STAT
irecorcis Administration Officer
?
?
Subscribed and Sworn to before met his /St ? day of
19,66.
(SEAL)
. (....(4..A.Tclu---. ,C 1.1,
\-.....) Notary Publid
I 4 4; i
My commission expires A 4. ,-.. J!-?,,,..44.,t _ I 69 .
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I ?
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_??
SECURITY
HR 10-20
.20. PaOTECTION AND DISCLOSUrf] INFORMATION
a. AUTHORITY. Under the National Security Act of 1947 arid the Central In-
telligence'Agency Act of 1949, and under direction of the National Security
Council, the Director of Central Intelligence is responsible for protecting 'in-
telligence sources and methods from unauthorized disclosure.
.b. PROTECTED INFORMATION. TI?): problem of determining what information
relates to the protection of inteM?:ence sources and methods is of such com-
plexity that no final determination can be made in regard to any single piece
of information within the Agen?-:2 or the other intelligence components except
at the Director's level. Under his responsibility for protection of such infor-
mation there have been established overall policies and detailed procedures
for the appropriate dissemination of information and for its protection in the
executive branch of the Government. Every request for information outside
of the system designed to serve the executive branch becomes a special prob-
lem requiring specific determination by or on behalf of the Director. There-
fore, all flies, documents, records, and information (whether or not reduced
to writing) in the offices of the Central Intelligence Agency, including the
several field offices, or acquired by any person as a result of service with or on
behalf of the Agency, are to be regarded in the first instance as protected
? Information. ?
c. POLICY. All persons are hereby prohibited from disclosing or using protected
information for any purpose other than the performance of duties for or on
behalf of the Agency, unless the Director Of Central Intelligence Or his designee
has authorized the disclosure or use as not being contrary to the public interest.
When deemed advisable by the Director, -requests for protected information
will be referred to the National Security Council for a decision on disclosure.
d. SUBPENA FOR PROTECTED INFORMATION ?
(1) Any person who is served with a subpena requiring the disclosure of pro-
tected information to a court or the Congress shall promptly inform the
General Counsel of the service of the subPena, the nature of the in-
formation sought, and any circumstances which may bear upon the de-
sirability of making available the information, in order that the General
Counsel may advise the Director. Any action in response to the subpena
shall be taken only .in accordance with advice of the General Counsel.
Disclosure may be authorized only by the Director or Deputy Director of
Central Intelligence.
. (2) If circumstances make it necessary for the Director to decline in the pub-
lic interest to furnish the information, the person on whom the subpena
Is served (acting in accordance with advice of the General Counsel) or
the General Counsel or his designee will appear in answer thereto and
; respectfully state that he is complying with specific instructions of the
,.Director of Central Intelligence in refusing to furnish the information
requested.
51
Certified a .:true copy of Central Intelligence. AgencY?Regulation
HR 10-20,, effective 29 August 1952, rentirribe-re.cf;)Ap'i-a1:961..
STATE OF VIRGINIA )
ss,
COUNTY OF FAIRFAX)
Subscribed and Sworn to before me this
- 1966.
My commission expires
I _Louis G. -Carrico
l CIA Records Administration
dffic er---
cia,y of
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
EERIK HEINE,
)
)
V.
Plaintiff,
)
)
Civil Action No. 15952
)
)
JURI RAUS,
)
)
Defendant.
)
)
AFFIDAVIT
Richard Helms, Deputy Director of Central Intelligence,
be:;ng first duly sworn, deposes and says that:
1. The purpose of this Affidavit is to specify the information
concerning Eerik Heine which was communicated by the Agency to
Jui Raus and thus to clarify Paragraph 8 of my previous Affidavit
dated April 1, 1966, which I otherwise adopt in its entirety and
incorporate herein by reference.
2. Prior to those occasions specified in Paragraphs 5, 6,
and 7 of the complaint in this action, the defendant, in a series of
co:tferences, was furnished information by the Central Intelligence
Agency to the effect that Eerik Heine was a dispatched Soviet intelligence
operative, a KGB agent. The defendant was instructed to warn
mc,mbers of Estonian emigre groups that Eerik Heine was a dispatched
So iet intelligence operative, a KGB agent. The purpose for this
instruction was to protect the integrity of the Agency's foreign intelligence
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sources, existing within or developed through such groups, in accordance
with the Agency's statutory responsibility to collect foreign intelligence
an the statutory responsibility of the Director of Central Intelligence
to protect foreign intelligence sources and methods. Accordingly, when
ui Raus spoke concerning the plaintiff on the occasions about which
'complaint is made, he was acting within the scope and course of his
:semployment with the Agency on behalf of the United States.
,STATE OF VIRGINIA )
COUNTY OF FAIRFAX )
ss.
Richard Helms
'Subscribed and sworn to before me this day o
1196 6.
27 ?
Notary Pubjic
My commission expires
(SEAL)
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ST .COPY
Available
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UNITED STATES DISTRICT COURT
C. T. ?"")/ASEN
CHIEF JUDGE
FOR THE
DISTRICT OF MARYLAND
BALTIMORE, MARYLAND 21202
Ernest C. Faskauskas, Esq.
Ray Road .
Hyattsville, Maryland
Robert J. Stanford, Esc!,
1730 M Street, N.W.
Washington, D.C.
Connolly, Esq.
-. Barrett Prettyman, Jr., Esq.
Hartson
?15 Connecticuit Avenue
Washington, D.C. 20006
April 4, 1966
Peine y, )us - Civil Action No, 15952
/ have read Mr. Prettyman's letter of April 1 to
my clerk, the transcript of the hearing on March 11
a__ of the papers which have been filed in the case since
11. 1 have concluded that the case should be set for
hearing on Thursday, April 14, at 10:00 a.m.
At that hearing the following matters will be con-
(1) The filing of the amended answer. At th, hear-
in. March 11, 1 stated that I would permit defendant to
fi:, amended answer setting wo absolute privilegc. De-
ft? filed a motion to amend the answer and I signed an
os. '11. March 23 permitting it to be filed. Thereafter,
aff filed a motion to strike the motion to amend the
4i-IL 0_, which the Court will consider also as a motion to
st_ the order entered thereon. Before making a final ruling,
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C. Paskauskas, Esq.
1.:...ezf'e J. Stanford, Esq.
Pl R. Connolly, Esq.
E. Larrett Prettyman, Jr., Esq.
April 4, 1966
? r1l1 hear anything which either side wishes to add to the
which has heretofore been submitted, including the
prins and authorities filed by plaintiff on April 1.
(2) Whether defendant should be allowed to proceed
wi his motion for summary judgment, based upon the material
a2':eady filed, the material which he proposes to file on April
r, or 5 and the testimony of a government official which he
to offer at the proposed hearing; or whether defendant
e:Juld be required to file a new motion for summary judgment.
? any event, the Court will consider what further opportunity
palintiff should be afforded to answer such motion for summary
nt or to develop facts in support of its opposition to
e' aotion.
(3) In connection with the last sentence, the Court
will rule on any objections which defendant may have to the
? inc5 of the deposition of the defendant or to such interroga-
te -is which plaintiff has filed or may file dealing with the
? --ion of privilege, as distinguished from the merits of the
It is not clear to me whether defendant intends to
1-_;t entirely on his right to raise the point, or whether the
gc.,.:.:ment intends to take any formal position in the matter,
tl the United States Attorney or otherwise.
It is my further uaderstanding that, if aele'eion ;v.
..it,am.:iry judgment is not granted, the issue ?f privilege should
bc hard separately and in advance of any tr al on the merke.
Very t ly yours,
RC2:LZI,
-2-
ief Judge
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F .7)D. SKEENS ec
tSKAUSKAS
ATTLRNEYS AT LAW
i 0.1%'-r4 STREET, NW.
."CON. D. C. 20006
296.4272
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
EERIK HEINE
Plaintiff,
Vs. ) Civil Action No. 15952
JURI RAUS
Defendant.
NOTICE OF TAKING OF DEPOSITION
TO: JUR' RAUS
c/O E. Barrett Prettyman, Jr*, Esquire
Paul R. Connolly, Esquire
Hogan & Hartson
815 Connecticut Avenue, N.W.
Washington, D.C.20006
PLEASE TAKE NOTICE that at 10:00 am, on the 12th day of
April, 1966, at the offices of Robert J. Stanfor1L- Esquire,
Suite 205, 1730 M Street, N.W., Washington, D.C., the plaintiff
will take the deposition of the defendant, Juni Raus, pursuant
to Rule 30 of the Federal Rules of Civil Procedure, before George
Poe, Notary Public, or some other person authorized to admin-
later an oath, for the purpose of discovery or for use in evidenc.
Trie examination will continue from day to day until completed.
You are invited to attend and cross examine.
Ernest C. Raskauskas
1418 Ray Road
Hyattsville, Maryland
Associate Counsel for Plaintiff
202 - 296-4272
CERTIFICATE OF SERVICE
A copy of the foregoing notice was mailed, postage prepaid,
this 29th day of March, 1966, to E. Barrett Prettyman, Jr., Esqui e,
,and Paul R. Connolly, Esquire Attorneys for Defendant, L15 Conn
ticut Avenue, N.W., Washington, D.C. 20006
iv
Ernest C.. Raskau ka
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